Section 35. Changing date of annual elections, numbed and terms of office of vestrymen and terms of churchwardens

of parishes heretofore incorporated.

36. Changing the qualifications of voters and the qualifications of wardens and vestrymen.

$30. The meeting for incorporation.- Notice of a meeting for the purpose of incorporating an unincorporated Protestant Epis copal parish or congregation, and of electing the first churchwardens and vestrymen thereof, shall specify the object, time and place of such meeting, and shall be made public for at least two weeks prior to such meeting, either by open reading of such notice in time of divine service, at the usual place of worship of such parish or congregation, or by posting the same conspicuously on the outer door of such place of worship.

Only men of full age who have been regular attendants at the worship of such parish or congregation and contributors to the support thereof for one year next prior to such meeting, or since the establishment of such parish or congregation, shall be qualified to vote at such meeting.

The presence of at least six persons qualified to vote thereat shall be necessary to constitute a quorum of such meeting. The action of the meeting upon any matter or question shall be decided by a majority of the qualified voters voting thereon, a quorum being present.

The officiating minister, or if there be none, or he shall be necessarily absent, any other person qualified to vote at the meeting, who is called to the chair, shall preside thereat. Such presiding officer shall receive the votes, be the judge of the qualifications of voters, and declare the result of the votes cast at such meeting.

The polls of the meeting shall remain open for one hour or longer in the discretion of the presiding officer, or if required, by a vote of a majority of the voters present.

The meeting shall decide whether such unincorporated parish or congregation shall become incorporated. If such decision be in favor of incorporation, such meeting shall decide upon the name of the proposed corporation; what secular day of the week

beginning with the first Sunday in Advent, shall be the date of the regular annual election of such corporation; whether the vestrymen thereof shall be three, six or nine; and shall elect by ballot from the persons qualified to be voters thereat, who have becn baptized, one third of the number of vestrymen so decided upon to hold office until the first annual meeting of the corporation to be held thereafter, one-third of such number, to hold office until one year after such annual meeting, and one-third of such number, to hold office until two years after such annual meeting; and shall elect from such qualified voters who are communicants in the Protestant Episcopal church, two persons to be churchwardens thereof, one to hold office until such annual meeting and one to hold office until one year after such annual meeting [See form, No. 11.

L. 1813, ch. 60, § 1, subs. 1-6; R. S., 8th ed., 1881.

The only material changes of substance are:

1. A notice of the meeting is to be read or posted instead of being read and posted as required by the present law. The present law requires the notice to be read by the rector or officiating minister. This section docs not specify the persons who shall read it.

2. The qualifications of voters is materially changed.

3. The date to be specified for annual corporate meeting is changed from Easter week to the week beginning with the first Sunday in Advent.

4. The number of vestrymen is changed from "not less than four nor more than eight annually elected," to "either three, six or nine," of whom one-third shall be elected annually.

There can be but one corporation for the same religious society. The faction which is most vigilant and gives the requisite notice for a meeting at both meeting places of the society, if the society holds religious services in two, may be lawfully incorporated, and become vested with the property of the society. Trustees v. Bly, 73 N. Y. 323. At the first meeting for incorporation two things must concur to qualify a voter, viz.: Regular attendance and contribution to the support of the church for one year prior to the meeting. Persons baptized in the church or received by confirmation or communion are not qualified (as formerly) unless regular attendance and contribution also concur.]

§ 31. The certificates of incorporation.-If such meeting shall decide in favor of incorporation and comply with the next preceding section, the presiding officer of such meeting and

at least two other persons present and voting thereat, shall execute and acknowledge a certificate of incorporation setting forth:

1. The fact of the calling and holding of such meeting;

2. The name of the corporation as decided upon thereat; 3. The county, and the town, city or village, in which its principal place of worship is, or is intended to be located;

4. The day of the week commencing with the first Sunday in Advent, upon which the annual elections of the corporation shall be held;

5. The number of vestrymen decided upon at such meeting;

6. The names of the vestrymen elected at such meeting and the term of office of each;

7. The names of the churchwardens elected at such meeting and the term of office of each.

On filing such certificate in the office of the clerk of the county, so specified therein, the members of such parish or congregation and the persons qualified to vote at such meeting, and the persons who shall thereafter, from time to time, be qualified voters at the corporate meetings thereof, shall be a corporation, by the name stated in such certificate and the persons so elected churchwardens and vestrymen, shall be its churchwardens and vestrymen for the terms therein stated respectively.

Such corporation shall be an incorporated church, and may be termed also an incorporated parish.

[See form, No. 12.

S. 1813, ch. 60, § 1, subs. 7, 8; R. S., 8th ed., 1882.

The certificate contains more details than are required by present law. The qualified voters and the members are expressly constituted the corporation, instead of the trustees as provided by L. 1813, ch. 60. § 1, sub. 8; but the present law has been interpreted to make the members the corporation, Robertson v. Bullions, 11 N. Y. 243; Cram v. Evan. Luth. Soc., 36 N. Y. 161, and cases cited under § 2.

If trustees are named, it will be considered a compliance with requirement that number be stated. Betts v. Betts (Sp. T.), 4 Abb. N. C. 317; but it is better to state number.

As to place of filing certificate, see § 3 and cases cited.

The general qualification of incorporators, the naming of the corporation and other general regulations as to certificates, are provided by

general corp. law, §§ 3-9. The persons before whom acknowledgments may be taken are specified in statutory construction law, § 15.

The certificate must contain the names of the trustees and the corporate name, but a defect in record can not be taken advantage of by a person who has contracted with the corporation. M. E. Union Ch. v. Pickett, 19 N. Y. 482.

A compliance with the statute will be presumed from long user under it. Saint's Ch. v. Lovett, 1 Hall's Superior Ct. Rep. 191.

A certified copy of the certificate is evidence equally with the original. Code Civ. Pro., § 933.

§ 32. Corporate trustees; vestry; powers and duties thereof.The churchwardens and vestrymen of an incorporated Protestant Episcopal parish or church, together with the rector thereof, if any, shall be the trustees of the corporation and shall also constitute the vestry of the parish.

No meeting of the vestry or trustees shall be held unless either all the members thereof are present, or three days notice thereof shall be given to each member thereof, by the rector personally or in writing to each member thereof, or, if there be no rector or he be incapable of acting, by one of the church wardens; except that twenty-four hours notice of the first meeting of the vestry or trustees after an annual election, shall be sufficient. To constitute a quorum of the vestry or board of trustees there must be present either:

1. The rector, at least one of the churchwardens, and a majority of the vestrymen, or

2. The rector, both churchwardens and one less than a majority of the vestrymen, or

3. If the rector be absent from the diocese and shall have been so absent for over four calendar months, or if the meetings be called by the rector and he be absent therefrom, or be incapable of acting, one churchwarden and a majority of the vestrymen, or both churchwardens and one less than a majority of the vestrymen.

But if there be a rector of the parish, no measure shall be taken, in his absence, in any case, for effecting the sale or disposition of the real property of the corporation, nor for the sale or disposition of the capital or principal of the personal prop

erty of the corporation, nor shall any act be done which shall impair the rights of such rector.

The presiding officer of the vestry or trustees shall be the rector, or if there be none, or he be absent, the churchwarden who shall be called to the chair by a majority of the votes, if both the churchwardens be present; or the churchwarden present, if but one be present.

At each meeting of the vestry or trustees each member thereof shall be entitled to one vote.

The vestry shall have power to fill a vacancy occurring in the office of a churchwarden or vestryman by death, resignation or otherwise than by expiration of term, until the next annual election at which, if such vacancy would continue thereafter, it shall be filled for the remainder of the unexpired term.

The vestry may, subject to the canons of the Protestant Episcopal church in the United States, and of the diocese in which the parish or church is situated, by a majority vote, elect a rector to fill a vacancy occurring in the rectorship of the parish, and may fix the salary or compensation of the rector.

[L. 1813, ch. 60, § 1, subs. 8, 14-16.

The provision of sub. 8 making the trustees the corporation is omitted, the members of the congregation being made the corporation by § 31. See cases cited under § 31.

Subdivision 16 expressly gives to the presiding officer of the board a casting vote. Omitted from this section.

The statute requiring a majority of the vestrymen contemplates a majority of the legal members, and not merely of a less number actually In office. Moore v. Rector, etc., of St. Thomas (circuit), 4 Abb. N. C. 51. Mandamus will lie to compel vestrymen to attend a duly called meeting of the vestry, where it appears that they willfully absented themselves. People ex rel. v. Winans (Sup. Ct. Chambers), 29 St. Rep. 651.

A rector of an incorporated church may be mandamused to join with the trustee in appointing a time for an election and fill vacancies in the office of church wardens, vestrymen and give notice thereof as required by law. People ex rel. Fleming v. Hart (Common Pleas), 11 N. Y. Supp. 673.

A committee of vestrymen who have been appointed to perform certain duties relating to the corporation, have no power, after having been ousted from office, to mandamus an officer of the corporation to perform an act sanctioning act done by them. Presbyterian Church v. Blackhurst, GO Hun, 63.