Weber v. Zimmerman

Bowie, C. J., delivered the opinion of this Court. The Act of Assembly passed at the January session 1858, ch. 285, materially changed the law governing proceedings in cases of mandamus in this State. That statute is embodied in the Code, Art. 59. Under the pro ¹⁶⁸ visions of that article of the Code, this cause was instituted and decided below, and in disposing of this appeal, this Court must, under the 12th sect, of the 5th Article of the Code, confine itself to the questions raised in, and decided hy the Superior Court.

These are presented hy the bills of exceptions, two of which were taken to the rejection of evidence offered by the defendants, and the third was taken to the refusal by the Superior Court to grant the two prayers of the defendants, and also to the instruction given to the jury. The third exception will first be considered. The Court’s instruction to the jury asserts that the notice of the meeting of the congregation to he held on the 13th day of January 1864, given in evidence, was not such a notice as was required hy the constitution of the congregation, and consequently that meeting is to be considered as irregularly convened, and is to be treated as invalid, and that its proceedings and votes are not binding upon the congregation or the petitioner. By the constitution, chapter 7, sec. 12, it is provided, that “All meetings (for business) of the congregation must be announced publicly in the Church (before the congregation) at least ten days previously, with the distinct declaration of the object (purpose, design, aim,) of the same (meeting.)” The new constitution, ch. 9, art. 9, contains a similar provision, in these words: “Every meeting of the congregation, with .the reason for calling the same, must be announced ten days previously, publicly from the pulpit.” On examining the notice given to the congregation, as stated in the bill of exceptions, this Court concurs in the opinion expressed by the Superior Court, that it is altogether insufficient, in not stating the object of the proposed meeting.

The petitioner was pastor of the Church, which was incorporated, under and in virtue of the Act of Assembly ¹⁶⁹ of 1802, cb. 111.' By that Act the pastor is constituted a corporator. Independent of the positive provisions contained in the constitution of the Church, above cited, it would seem, from the authorities, that in order properly to exercise the right of amotion of a corporator, notice must be given to all the members of the corporation, “that it is intended to consider the question of removing the