Bailey v. American Society for Prevention of Cruelty to Animals

Callahan, J. Defendant, Society, appeals from an order denying defendant’s motion to dismiss the complaint for insufficiency and for. summary judgment in defendant’s favor. Twenty members, a small minority of defendant Society, sue the Society for a judgment declaring certain by-laws of the Society void and for a judicial determination of the rights of the parties. The Society was organized in 1866 by a special act of the Legislature (L. 1866, ch. 469) for a nonprofit and humane purpose. Plaintiffs are among those who pay dues as patrons or members of various classes. Certain functions of a public nature in the way of enforcement of laws against cruelty to animals and licensing of animals have been delegated to the Society. The act of incorporation gave the Society the right to adopt a code of by-laws not inconsistent with the laws of the State or the United States, which code until modified or rescinded was to be as binding on the Society, its officers and members as the act itself. Pursuant to this power defendant did adopt by-laws from time to time. It is largely with relation to by-laws adopted in 1900 and 1907 that plaintiffs complain, contending, inter alia, that there has been an unlawful usurpation of power by the board of managers of the Society in various respects to the injury and deprivation of plaintiffs’ rights. There is also complaint as to the procedure under which these by-laws were adopted. The complaint prays this court to declare the by-laws of 1907 unlawful and to enjoin action under them anil for such other relief as may be necessary and proper. [504] The complaint also recites that an actual controversy exists in the Society as to the failure of the board of managers to oppose a certain statute enacted by the Legislature of this State with respect to the requisition of dumb animals for scientific experimentation and that the board of managers refused to follow the desires and requests of a majority of the members to oppose this law. No specific relief is asked from the court with respect to this phase of the controversy. In any event, it is plain that the policy of a corporation with respect to a law of this State is to be determined in the discretion of the directors or managers as to which the courts would not interfere. We thus have an action in which the sole question presented for judicial determination is whether certain by-laws are in conflict with the law of the land or were illegally adopted. Thus, only questions of law are presented which we should now determine. We have examined the complaint and find no actionable violation of plaintiffs’ rights sufficiently alleged. Among the contentions of plaintiffs is that defendant is subject to the provisions of the Membership Corporations Law and certain of its by-laws conflict with such statute. We think it is clear that section 2 of the Membership Corporations Law excludes this Society from its provisions as a corporation created by special law. There appears to be no present justiciable issue as to whether the by-laws were illegally or improperly adopted. In fact, both the 1900 and the 1907 amendments appear to have been adopted or ratified at meetings of the members of the Society. Whether these amendments had been properly introduced, or proper preliminary steps initiated with respect thereto at some earlier meeting, would seem to us to be academic. The propriety of the preliminaries would appear to be a matter for the members to decide before voting, and since they adopted the amendments, the inference is warranted that they waived any possible procedural irregularity. At least, the matter would hardly appear to be available to members who joined the Society many years after 1907. The lapse of almost fifty years would seem to make any present complaint as to procedure in adoption untenable, and we find that plaintiffs’ contentions as to the impropriety in adopting the 1900 or 1907 by-laws are not shown. In any event, summary judgment would have to be awarded defendant concerning any claim as to the improper adoption of these by-laws if the controversy be [505] assumed to present a justiciable issue. Further, the adoption of the 1907 by-laws would eliminate as immaterial complaint of impropriety in adopting the 1900 by-laws. Aside from impropriety in adoption, the plaintiffs’ principal complaint is that the board of managers has unlawfully usurped too much power to itself with respect to acceptance of new members and expulsion of present members and in respect to self-perpetuation of control by selection of successors when vacancies occur in the board of managers. In the absence of any complaint that any particular applicants were improperly excluded from membership or any members unlawfully expelled — and no such claims are made — it would appear that the complaint asserts no actionable wrong in these matters. As to the so-called “ self-perpetuation ” by the board controlling election of their successors, it is clear that in the case of a membership corporation organized for charitable or nonprofit purposes such provisions in corporate by-laws do not infringe on any property or other enforcible right of ordinary members and are not illegal (See Matter of Mount Sinai Hosp., 250 N. Y. 103). It is true that the Mount Sinai case represented a change in corporate powers by legislative action, and, of course, the only restriction on the Legislature would be one of constitutional limitation. We deem, however, that what was said in that case as to the reasons why some degree of self-perpetuation is permissible in the governing bodies of charitable corporations to be equally applicable here where the so-called “ perpetuation ’ ’ was provided by amendments to by-laws. Perhaps the provisions in the by-laws that five managers would constitute a quorum of its board run counter to the present requirements of section 27 of the General Corporation Law, and, therefore, it might be improper for the board to attempt to act by a vote of five though the by-laws were lawful when adopted. But there is no claim that defendant has ever attempted to adopt any resolution by a vote of five, and until it does so, there appears to be no necessity for judicial action or declaration on the subject. We find no statement of facts that affords a basis for the award of judgment demanded for plaintiffs and, therefore, dismiss the complaint.