(118 Misc. Rep. 639) (195 N.Y.S.) FAIRCHILD v. TILLOTSON et al. (Supreme Court, Special Term, New York County. May, 1922.) 1. Religious societies 7-May adopt by-laws regulating conduct of members and providing for suspension or expulsion for violation thereof. The by-laws of a religious corporation, adopted under Religious Corporations Law, § 5, may reasonably regulate the conduct of its members and provide for suspension or expulsion in case of violation thereof, especially in matters of discipline, ecclesiastical rules, and laws and customs of church government. 2. Associations 7-One who joins legally organized body, empowered to make laws regulating conduct of members, becomes bound by such laws. A person joining any legally organized body, with powers to make laws and rules for its own government and for the regulation of the conduct of its members, becomes bound by such laws and rules, and a decision of that body, proceeding according to judicial forms, touching his rights or relations as a member, is binding on the courts. 3. Religious societies 12(2)—The proper forum for determination of questions affecting the moral and spiritual side of ecclesiastical discipline is the church judicatory. The proper church judicatory of an ecclesiastical body in which one holds membership, and under whose tutelage one exercises religious functions, is the proper forum for the determination of questions affecting the objects and interests of the moral and spiritual side of ecclesiastical discipline. 4. Religious societies 7-By-law relating to expulsion of member held reasonable. By-law of Christian Science Church, providing that any member of the church who is found, after a hearing, to be a loyal student, follower, supporter, or adherent of one who has been expelled from membership in the mother church by the Christian Science board of directors may be dropped from membership in the church by a two-thirds vote of the board of trustees, held a reasonable by-law, with the enforcement of which a court will not interfere. Action by Walter Fairchild against John Tillotson and others, as and constituting the Board of Trustees of First Church of Christ, Scientist, of New York City, and another. On defendants' motion for judgment on the pleadings. Motion granted. Walter Fairchild, of New York City, for plaintiff. MCAVOY, J. The defendants have expelled plaintiff from membership in the defendant church, pursuant to a by-law adopted in October, 1921, which was an amendment to the formerly existing canons of the church's government. It reads: "Any member of this church who is found, after a hearing, to be a loyal student, follower, supporter or adherent of one who has been expelled from membership in the mother church by the Christian Science board of directors may be dropped from membership in the church by a two-thirds vote of the board of trustees. * Under this section of the by-laws no admoni tion shall be necessary." Plaintiff charges that the procurement of the passage of said bylaw was not in good faith, was a mere subterfuge upon which to predi For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes cate charges of conduct theretofore not deemed as prejudicial to the discipline of the church, and that, as to him, the said by-law is void and of no effect, because of its retroactive and ex post facto features, in so far as his conduct is concerned. [1-3] Religious Corporations Law (Consol. Laws, c. 51) § 5, gives power to the trustees of a religious corporation to adopt by-laws or amend the same by a two-thirds vote of the qualified voters present and voting at the meeting for incorporation, or at any subsequent meeting after written notice embodying such by-laws or amendment as has been openly given at a previous meeting, and also in the notices of the meeting at which such proposed by-laws or amendment is to be acted. upon. The by-laws thus adopted or amended control the action of the trustees. That such by-laws of a religious corporation, or in fact of any membership corporation, may reasonably regulate the conduct of its members, and provide for suspension or expulsion in case of violation thereof, is unquestionably the rule, and especially is this true. in matters of discipline, ecclesiastical rules, and laws and customs of church government. A person joining any legally organized body, with power to make laws and rules for its own government and for the regulation of the conduct of its members, becomes bound by those laws and rules, and a decision by that body, proceeding according to judicial forms, touching his rights or relations as a member, is binding upon the courts. The proper church judicatory of an ecclesiastical body in which one holds membership, and under whose tutelage one exercises religious functions, is the proper forum for determination of questions affecting the objects and interests of the moral and spiritual side of ecclesiastical discipline. Of the things exclusively temporal and material, unless dependent upon questions of doctrine, a civil tribunal may take jurisdiction to enforce and determine such rights. The courts of this country do not differ, nor rule contrariwise in other jurisdictions. Stack v. O'Hara, 98 Pa. 213; Rose v. Vertin, 46 Mich. 457, 9 N. W. 491, 41 Am. Rep. 174; Chase v. Cheney, 58 Ill. 509, 11 Am. Rep. 95. A [4] It would therefore be incumbent upon plaintiff to allege in his complaint facts from which it could be reasonably deduced that the by-law was unreasonable, not adapted to the purposes of the corporation, or contrary to or inconsistent with the laws of the state, or in violation of general law or public policy. This he fails to do. That a wiser, more humane, or fraternal spirit and course might have been pursued cannot be ground upon which jurisdiction may grow. member of a corporation hedges himself in by his agreement to be governed by its charter and by-laws, so as to yield the protection which one seeks in the ordinary affairs of life, and enlarges the authority that may be used against him. People v. New York Cotton Exchange, 8 Hun, 216. I think the by-law under consideration is fully authorized by the defendant's corporate powers, and is adapted to a proper exercise of restraint of the member's orthodoxy, and, while plaintiff can insist that his civil and property rights as an individual or citizen shall be determined according to the law of the land, his relations, rights, and obligations arising from his position as a member (195 N.Y.S.) of this religious body may only be determined according to the laws and procedure enacted by that body. Motion by the defendants for judgment on the pleadings granted. Ordered accordingly. (118 Misc. Rep. 701) ADAMS v. CORWIN, County Auditor. (Supreme Court, Suffolk County. May, 1922.) Elections 47-Statute held unconstitutional, in so far as it abolishes office of commissioner of election; "polls." Election Law, § 39, providing that in certain counties the county clerk shall have the powers and duties of a board of elections, as well as those of a county clerk, held void, in so far as it abolishes the office of commissioner of election, since it violates Const. art. 2, § 6, requiring that all laws creating, regulating, or affecting boards or officers charged with the duty of registering voters, or "of distributing ballots at the polls to voters," or of "receiving, recording or counting votes at election," to secure equal representation of the two political parties as to the largest number of votes cast at a preceding election, in that it provided for the performance of the necessary acts to be done in connection with absentee voters under Laws 1920, c. 875, re-enacted in Laws 1922, c. 588. §§ 90, 117, 122 enacted pursuant to Const. art. 2, § 1-a, by the county clerk which had been done by the board of elections; the distribution of ballots to absentee voters being within article 2, § 6, of the Constitution, relating to distribution of ballots at the "polls." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Poll.] Application by Sandy J. Adams for mandamus against Dwight T. Corwin as County Auditor of the County of Suffolk, State of New York. Granted. Reversed 201 App. Div. 735, 195 N. Y. Supp. 182. Samuel Seabury, of New York City, for petitioner. Charles D. Newton, Atty. Gen. and Nathan O. Petty, of Riverhead (Robert P. Beyer, of New York City, of counsel), for respondent. LAZANSKY, J. Application by one Sandy J. Adams, as chairman of the board of elections of Suffolk county, for a peremptory writ of mandamus to compel Dwight T. Corwin, county auditor of Suffolk county, to draw a warrant in favor of the said Adams for his salary as a member of the elections board from April 13, 1920, to April 30, 1922. The question involved is whether or not section 39 of the Election Law (Laws 1922, c. 588, effective April 12, 1922 [Consol. Laws, c. 17]) is unconstitutional, in that it provides that in certain counties, including the county of Suffolk, the county clerk shall have the powers and duties of a board of elections as well as those of a county clerk. The effect of this act is to abolish the office of commissioners of election in Suffolk county. The only point made is that the performance of the necessary acts to be done in connection with absentee voters by the county clerk which had been done by the board of elections would be in violation of article 2, § 6, of the state Constitution, which provides: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes "All laws creating, regulating or affecting boards or officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections shall secure equal representation of the two political parties which, at the general election next preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes. All such boards and officers shall be appointed or elected in such manner, and upon the nomination of such representatives of said parties respectively, as the Legislature may direct. Existing laws on this subject shall continue until the Legislature shall otherwise provide. This section shall not apply to town meetings, or to village elections." It is urged that under the provisions of law relative to absentee voting, the person or persons having charge thereof distribute ballots at the polls to voters and receive votes at elections within the meaning of the constitutional provision. There can be no doubt that the word "polls" has had a well-defined and understood meaning. It is the place to which voters go to cast their ballots. But the spirit of the Constitution reaches out and embraces within its scope situations within its purview although without its letter. People ex rel. Bolton v. Albertson, 55 N. Y. 50, where at page 55 it is said: "A written constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the Legislature as upon other departments of government and individual citizens, according to its spirit and the intent of its framers, as indicated by its terms. An act violating the true intent and meaning of the instrument, although not within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden. A thing within the intent of a constitution or statutory enactment is for all purposes to be regarded as within the words and terms of the law. A written constitution would be of little avail as a practical and useful restraint upon the different departments of government, if a literal reading only was to be given it, to the exclusion of all necessary implication, and the clear intent ignored, and slight evasions or acts, palpably in evasion of its spirit, should be sustained as not repugnant to it. The restraints of the Constitution upon the several departments, among which the various powers of government are distributed, cannot be lessened or diminished by inference and implication; and usurpations of power, or the exercise of power in disregard of the express provision or plain intent of the instrument, as necessarily implied from all its terms, cannot be sustained under the pretense of a liberal or enlightened interpretation, or in deference to the judgment of the Legislature, or some supposed necessity, the result of a changed condition of affairs." The purpose of this constitutional provision was to furnish a method of preventing corruption at the polls. While corruption is more often suspected and charged than found, it, nevertheless, does sometimes exist. It was to minimize its possibility that the fundamental law of the state sought to excite a watchfulness, created out of party prejudice, which would be a safeguard against wrongdoing. Whether or not it accomplishes the purpose is not the question. The sovereign power has declared it essential. At the general election November 4, 1919, an amendment to the Constitution was adopted which permitted absentee voting. Pursuant to this amendment the Legislature enacted chapter 875. Laws of 1920, which has been re-enacted into chapter 588, Laws of 1922 (Election Law). See sections 117, 122, and 90. By section 117 it is provided that a qualified voter who is absent (195 N.Y.S.) from the county of his residence because his duties, business, or occupation require him to be elsewhere, may vote as an absentee voter. He is required to file an affidavit not later than the 17th day before the general election, stating his name and residence address; that he is a qualified voter of the election district in which he resides; that he expects, in good faith, to be unavoidably absent because of certain duties, etc., giving a brief description of the duties, etc., which require his absence; the special circumstances by which such absence is required, etc.; and that he applies in good faith for the absentee's ballot or ballots. Under section 118 upon receipt of such affidavit the board of elections "shall determine, upon such inquiry as it deems proper whether the applicant is a voter legally qualified to vote at such election, and if it finds he is not so qualified shall reject the application." It is further provided by section 118, if the board shall find the applicant is a qualified voter and that his affidavit is sufficient "it shall, as soon as practicable after it shall have determined his right thereto, deliver to him, at the office of the board, or if he shall have so requested to a member of his family, or if he shall have so requested shall mail to him at an address in the United States designated by him, an absentee voter's ballot or set of ballots, and an envelope therefor." The law provides specifically certain details with reference to the form of the ballot, and then provides by section 120 that the board shall furnish with each absentee voter's ballot an envelope. After marking his ballot as provided by law, the absentee voter is required to place the ballot in an envelope and take and subscribe a certain oath, which, according to the law, he is required to take and which is set forth on the reverse side of the envelope. The envelope, sealed, containing the ballot, is then mailed or delivered to the board of elections of the county or city of his residence. Provision is also made for the delivery of these ballots by the board of elections to the town or city clerks, except in the cities of New York and Buffalo, and by the town. or city clerk to the respective election districts where the absentee voters reside and are entitled to vote. Section 90. Under section 39 of the Election Law, as amended, the county clerk will perform these duties. Having in mind the purpose of the constitutional direction as to the distribution of ballots to voters at the polls, it seems to me that the distribution of ballots to absentee voters is surely within the purview of the constitutional provision. While it is true that this distribution is not made at the polls, as that term is generally used, it does not do any violence to the use of that term to include within its scope the distribution to voters of the ballots wherever or however it may take place when the distribution is made to enable them to cast the ballots so distributed. In Matter of Metz v. Maddox, 189 N. Y. 460, 82 N. E. 507, 121 Am. St. Rep. 909, a recount or recanvass by a justice of the Supreme Court of votes cast at a general election was held to be a violation of article 2, section 6, of the Constitution. Surely such recount would not be a "counting of votes at elections," yet it was held to be |