Me. Presiding Justice Adams
delivered the opinion of the court.
The by-law referred to in the preceding statement, namely, “Applications shall not be received from barkeepers, or from persons who, at any time, sell or serve intoxicating liquors to be drunk on the premises,” was at the time of Wasserman’s application for membership in the appellant order, and ever since said time has been, a general law of the order binding on all subordinate lodges and members of the order. The effect of this by-law is, clearly, to render ineligible and exclude from membership the classes of persons mentioned, namely, bar-keepers, and persons who, at any time, sell or serve intoxicating liquors to be drunk on the premises where sold or served. Had this provision been incorporated in the law under which appellant was organized, it would hardly be contended, and certainly could not successfully be contended, that either of the classes mentioned could legally be admitted, or become legal members of the order and entitled to its benefits.
In Old People’s Home Society v. Wilson, 176 Ill. 94, the court say: “ The corporation has no authority to create a fund for other persons than the classes specified in the law, nor can a member direct the fund to be paid to a person outside of such classes.”
See also Palmer v. Welch, 132 Ill. 141, 148. It is not claimed that the appellant corporation had not the power to pass the by-law in question, on the contrary, its power in the premises is tacitly conceded. Having power to enact the by-law, we can not perceive why, in principle, its effect is not the same as if it were incorporated in the statute under which the appellant was organized.
In Tudor v. Rapid Transit Co., 154 Ill. 129, 136, the court say: “ In Mason v. Shawneetown, 77 Ill. 533, it was held that where an incorporated city has been invested -by the legislature with power to pass an ordinance, and has adopted an ordinance in pursuance of the act creating the corporation, then such ordinance has the force and effect of a law enacted by the legislature, and is to be regarded as a law of and within the municipality.”
We can perceive no sound reason why this language is not equally applicable to a by-law passed by a corporation such as appellant, reasonable in itself, and in pursuance of authority conferred by its organic law. The by-law is part of the alleged contract between Wasserman and appellant. The benefit certificate which Wasserman accepted, contains the following :
“ And upon condition that the statements made bv him in his application for membership in said council and the statements certified by him to the medical examiner, both of which are filed in the supreme secretary’s office, be made a part of this contract, and upon condition that the said member complies with the laws, rules and regulations now governing the said council and fund, or that may hereafter be enacted by the supreme council to govern said council and fund,” etc.
“ In-construing the contract by the holder of the certificate, or rather that made between the member and the corporation, the application, the examination by the physician, the constitution and by-laws and the certificate issued, are all to be construed together as the contract between the parties.” Fullenweider v. Royal League, 180 Ill. 621.
The by-law being part of Wasserman’s contract, by his contract, taken in connection with the evidence, he was ineligible to membership. The. contentions of appellees’ counsel in respect to the by-law are, first, that it was erroneously admitted in evidence, because not specially pleaded, and secondly, that it was waived by the subordinate lodge.
The question whether it was necessary to • plead the by-law is not before us for decision, no cross-error having been assigned by appellees. The second contention involves two questions: namely, whether the subordinate lodge could legally waive the by-law, and, if yea, whether it did waive it. Conceding, for the salce of the argument, that the subordinate lodge could legally waive the by-law, we find no evidence of such waiver. Appellees’ counsel assumes that the subordinate lodge knew of the business in which Wasserman was engaged, relying, apparently, on the testimony of Bondy, himself a saloon-keeper, engaged in the same business as Wasserman. But Bondy’s evidence falls far short of showing knowledge on the part of the lodge. He testified :
“ It was mentioned to leading members of the lodge that William Wasserman was in the saloon business at the time the application was taken. I told several of the brothers that I had a candidate to present; that he was in the same business as I am; had a restaurant and a bar in connection with it; that he managed the place the same as I did; served drinks and managed the business,” etc.
The witness does not name any one he told, nor does he state how many he told. Appellees’ counsel also refer to Bondy’s testimony that Wasserman was not asked by the medical examiner whether he was in the saloon business. It is not claimed that such question was asked, but the question, “ Are you now, or have you ever been engaged in the manufacture or sale of intoxicating liquors,” was asked, and he answered, “ No.” Adolph Weiskopf, chairman of the investigating committee, a witness for appellees, testified that the committee asked him, “ Do you serve drinks % ” and he answered, “ No.” Instead of the lodge having knowledge that Wasserman was a bar-keeper and engaged in selling and serving intoxicating liquors, the evidence tends strongly to prove that the lodge was deceived as to the nature of his business. In his answer to the medical examiner, he had stated that he had never been engaged in the sale of intoxicating liquors, and he stated to the investigating committee that he did not serve drinks. When the lodge came to vote on the question of his admission, it had before it his application, including his answers to the medical examiner, and the favorable report of the investigating committee, and absolutely nothing to indicate the actual business in which Wasserman was engaged. There is not a particle of evidence that the subordinate lodge knew of Wasserman’s ineligibility from the date of his application till the date of his death. What has been said, if true, as we think it, would seem to render unnecessary a discussion of the question whether the subordinate lodge could legally waive the by-law, but that question having been pressed on our attention by counsel, we proceed to consider it.
The by-law in question went to the very root of the matter. ' It, in substance, declared ineligible bar-keepers and persons who, at any time, sell or serve intoxicating liquors to be drunk on the premises. No question of forfeiture is involved, as counsel for appellees seem to think. To be forfeited there must be or have been some right. Without a right to forfeit, there can be no forfeiture. By the law of the appellant corporation, Wasserman never had anjr right of membership to be forfeited.
In McCoy v. Roman Catholic Mut. Ins. Co., 152 Mass. 272, it appeared that by a by-law of the order persons over the age of fifty-one years were ineligible to membership in the order. McCoy, at the time of his application for membership, was more than fifty-one years of age, but his application stated that he was about forty-nine years of age.
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Me. Presiding Justice Adams
delivered the opinion of the court.
The by-law referred to in the preceding statement, namely, “Applications shall not be received from barkeepers, or from persons who, at any time, sell or serve intoxicating liquors to be drunk on the premises,” was at the time of Wasserman’s application for membership in the appellant order, and ever since said time has been, a general law of the order binding on all subordinate lodges and members of the order. The effect of this by-law is, clearly, to render ineligible and exclude from membership the classes of persons mentioned, namely, bar-keepers, and persons who, at any time, sell or serve intoxicating liquors to be drunk on the premises where sold or served. Had this provision been incorporated in the law under which appellant was organized, it would hardly be contended, and certainly could not successfully be contended, that either of the classes mentioned could legally be admitted, or become legal members of the order and entitled to its benefits.
In Old People’s Home Society v. Wilson, 176 Ill. 94, the court say: “ The corporation has no authority to create a fund for other persons than the classes specified in the law, nor can a member direct the fund to be paid to a person outside of such classes.”
See also Palmer v. Welch, 132 Ill. 141, 148. It is not claimed that the appellant corporation had not the power to pass the by-law in question, on the contrary, its power in the premises is tacitly conceded. Having power to enact the by-law, we can not perceive why, in principle, its effect is not the same as if it were incorporated in the statute under which the appellant was organized.
In Tudor v. Rapid Transit Co., 154 Ill. 129, 136, the court say: “ In Mason v. Shawneetown, 77 Ill. 533, it was held that where an incorporated city has been invested -by the legislature with power to pass an ordinance, and has adopted an ordinance in pursuance of the act creating the corporation, then such ordinance has the force and effect of a law enacted by the legislature, and is to be regarded as a law of and within the municipality.”
We can perceive no sound reason why this language is not equally applicable to a by-law passed by a corporation such as appellant, reasonable in itself, and in pursuance of authority conferred by its organic law. The by-law is part of the alleged contract between Wasserman and appellant. The benefit certificate which Wasserman accepted, contains the following :
“ And upon condition that the statements made bv him in his application for membership in said council and the statements certified by him to the medical examiner, both of which are filed in the supreme secretary’s office, be made a part of this contract, and upon condition that the said member complies with the laws, rules and regulations now governing the said council and fund, or that may hereafter be enacted by the supreme council to govern said council and fund,” etc.
“ In-construing the contract by the holder of the certificate, or rather that made between the member and the corporation, the application, the examination by the physician, the constitution and by-laws and the certificate issued, are all to be construed together as the contract between the parties.” Fullenweider v. Royal League, 180 Ill. 621.
The by-law being part of Wasserman’s contract, by his contract, taken in connection with the evidence, he was ineligible to membership. The. contentions of appellees’ counsel in respect to the by-law are, first, that it was erroneously admitted in evidence, because not specially pleaded, and secondly, that it was waived by the subordinate lodge.
The question whether it was necessary to • plead the by-law is not before us for decision, no cross-error having been assigned by appellees. The second contention involves two questions: namely, whether the subordinate lodge could legally waive the by-law, and, if yea, whether it did waive it. Conceding, for the salce of the argument, that the subordinate lodge could legally waive the by-law, we find no evidence of such waiver. Appellees’ counsel assumes that the subordinate lodge knew of the business in which Wasserman was engaged, relying, apparently, on the testimony of Bondy, himself a saloon-keeper, engaged in the same business as Wasserman. But Bondy’s evidence falls far short of showing knowledge on the part of the lodge. He testified :
“ It was mentioned to leading members of the lodge that William Wasserman was in the saloon business at the time the application was taken. I told several of the brothers that I had a candidate to present; that he was in the same business as I am; had a restaurant and a bar in connection with it; that he managed the place the same as I did; served drinks and managed the business,” etc.
The witness does not name any one he told, nor does he state how many he told. Appellees’ counsel also refer to Bondy’s testimony that Wasserman was not asked by the medical examiner whether he was in the saloon business. It is not claimed that such question was asked, but the question, “ Are you now, or have you ever been engaged in the manufacture or sale of intoxicating liquors,” was asked, and he answered, “ No.” Adolph Weiskopf, chairman of the investigating committee, a witness for appellees, testified that the committee asked him, “ Do you serve drinks % ” and he answered, “ No.” Instead of the lodge having knowledge that Wasserman was a bar-keeper and engaged in selling and serving intoxicating liquors, the evidence tends strongly to prove that the lodge was deceived as to the nature of his business. In his answer to the medical examiner, he had stated that he had never been engaged in the sale of intoxicating liquors, and he stated to the investigating committee that he did not serve drinks. When the lodge came to vote on the question of his admission, it had before it his application, including his answers to the medical examiner, and the favorable report of the investigating committee, and absolutely nothing to indicate the actual business in which Wasserman was engaged. There is not a particle of evidence that the subordinate lodge knew of Wasserman’s ineligibility from the date of his application till the date of his death. What has been said, if true, as we think it, would seem to render unnecessary a discussion of the question whether the subordinate lodge could legally waive the by-law, but that question having been pressed on our attention by counsel, we proceed to consider it.
The by-law in question went to the very root of the matter. ' It, in substance, declared ineligible bar-keepers and persons who, at any time, sell or serve intoxicating liquors to be drunk on the premises. No question of forfeiture is involved, as counsel for appellees seem to think. To be forfeited there must be or have been some right. Without a right to forfeit, there can be no forfeiture. By the law of the appellant corporation, Wasserman never had anjr right of membership to be forfeited.
In McCoy v. Roman Catholic Mut. Ins. Co., 152 Mass. 272, it appeared that by a by-law of the order persons over the age of fifty-one years were ineligible to membership in the order. McCoy, at the time of his application for membership, was more than fifty-one years of age, but his application stated that he was about forty-nine years of age. The vice-president of the company knew, and others knew, or had good reason to know, that McCoy was older than fifty-one years when he applied for membership. It was claimed that the by-law as to age had been waived, in respect to which the court say :
“Hone of the other officers of the corporation had any knowledge that the deceased was older than he represented himself to be in his application, and no other person has been admitted as a member of the corporation since the adoption of the by-laws, without an application under the by-laws stating that he was less than fifty-one years of age. But even if the officers of the corporation had attempted to waive the by-laws in this particular, which was of the substance of the contract, Ave are of opinion that they had no authority so to do. This is a corporation which does not make contracts of life insurance with strangers, but arranges a system of payments for the benefit of the relatives of its deceased members. It adopts by-laws to determine the relations of the members to one another, and also their rights against the corporation. The principles which apply to ordinary mutual insurance companies in regard to the Avaiver of by-laws by officers are equally applicable to this corporation. Bolton v. Bolton, 73 Maine, 299; Swett v. Citizens’ Relief Society, 78 Maine, 541. It is Avell settled that the officers of a mutual insurance company have no authority to Avaive its by-laws which relate to the substance of the contract between an individual member and his associates in their corporate capacity,” citing numerous cases.
It is evident from this opinion that in appellant’s home State, the by-law in question, going, as it does, to eligibility, could not be waived by a subordinate lodge.
The following text books and authorities sustain the proposition that matters going to the substance of the contract can not be waived by officers or agents of the corporation. Hiblack on Benefit Societies, Sec. 96 et seq.; Bacon on Benefit Societies, Sec. 434a; Grand Lodge v. Jesse, 50 Ill. App. 101.
Appellees’ counsel relies mainly on Foresters v. Schweitzer, 171 Ill. 325, to sustain the contention that the by-law may be waived; but there is a clear distinction between the facts in that and the present case. The facts in the Schweitzer case are stated in 70 Ill. App. 325. Schweitzer was a bar-keeper and was eligible to membership in the order in the “ hazardous risk class,” in which class a higher rate of dues was required than in the ordinary risk class. In his application for membership he stated that he was a restaurant manager, and was admitted as a member in the ordinary risk class. Before his certificate was delivered to him it was stated by a member in an open meeting of the lodge, that Schweitzer was a bar-keeper. Nevertheless, the lodge continued to receive from him, until the time of his death, the rates for the ordinary risk class. Held, that the company was liable. The case there was this: Schweitzer was eligible to membership, but was liable to pay hazardous risk assessments. The lodge, knowing his occupation, admitted him to membership, but demanded of him only ordinary risk assessments, which he paid. He paid all he was required to pay by the lodge.
The contention of appellees’ counsel plainly stated is this : That a valid general law of the order excluding from membership certain classes may be wholly disregarded and practically nullified by a subordinate lodge. To so hold would be to hold, in effect, that the by-laws of such a corporation as appellant are merely formal and of no binding force. We can not so hold. In Moerschbaecher v. Royal League, 188 Ill. 9, Moerschbaecher, being eligible, became a member of the order. A by-law of the order which, by his contract, was binding on him, provided that any member who, after obtaining membership in the order, should engage in or pursue the occupation or employment of keeping a saloon, should stand suspended and forfeit all interest in the benefit fund. He was admitted a member November 18, 1890, and in 1891 he engaged in the business of a saloon-keeper and continued in that business till his death. Held, that there could be no recovery. By the by-law in the case cited, a member merely forfeited his rights by 'engaging in the prohibited occupation, while, by the by-law in the present case, appellee’s being engaged in the prohibited occupation absolutely excluded him from membership.
There is in the present case another element which, in our opinion, precludes recovery. Wasserman’s application, signed by him, contains the following ;
“ I do hereby warrant the truthfulness of the statements in this application, and consent and agree that any untrue or fraudulent statement made therein, or to the medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from, or voluntarily severing my connection with the order, shall forfeit the rights of myself and my family or dependents to all benefits and privileges therein.”
In Wasserman’s medical examination he answered “Ho” to the question:
“ Are you now, or have you ever been engaged in the manufacture or sale of intoxicating liquors ? If so, when and in what way ? ”
The evidence is conclusive that his answer was false. In view of the by-law excluding from membership persons in Wasserman’s occupation, the question was material and vital. The courts, in insurance cases, have indulged in so great refinement in discussing the question whether an express warranty is, in law, a warranty or a mere representation, that, in many instances, it is next to impossible for a subordinate court to decide the question with any confidence, nevertheless, we incline to the view that, in the present case, the truth of the answers must be regarded as warranted, in which case the question of their materiality would not arise; but the ansxver above quoted xras material and vital, and its falsity must have been known to Wasserman. And such being the case, the false answer, even if considered as merely a misrepresentation, vitiated the benefit certificate, National Union v. Arnhorst, 74 Ill. App. 482, 489, and cases cited; Bacon on Benefit Societies, Secs. 212, 230a; Joyce on Insurance, Sec. 1900.
The judgment will be reversed.
Judge Windes, being a member of the appellant order, took no part in the decision.