Bailey, J.
The defendant is a voluntary organization, having for one of it objects the accumulation and administration of a fund. for the benefit of the widows, orphans or devisees of the. deceased members of the various subordinate lodges subject to its jurisdiction. Said fund is composed of contributions from said subordinate lodges, in proportion to their respective membership, and in consideration of such contributions, the defendant undertakes to pay the sum of 81,000 to the widow, orphans or devisee of each person who, at the time of his death, was a member in good standing in one of said subordinate lodges.
For several years Joseph Cohn, the plaintiff’s husband, was a member in good standing, of Germania Lodge, one of said subordinate lodges, under an arrangement by which the §1,000 payable at his death should be paid to the plaintiff.' On the 2d day of December, 1884, said Cohn died, and the plaintiff’s light to recover of the defendant the sum payable at his death, depends wholly upon the question whether said Cohn, at the time of his death, was a member in good standing of Germania Lodge.
By a law of the Supreme Lodge of the order, which is binding upon all subordinate lodges and their members, it is declared that a member shall be considered in good standing if he shall have paid all charges, dues and fines against him, in the manner and at the time provided by the laws of his district and lodge, and if he shall not be under sentence of suspension. One of the by-laws of the Germania Lodge provides that a member who does not pay his quarterly dues, fines and other demands to the lodge at the maturity of the legal time, may be declared in arrears, and he shall lose his financial demands on the lodge, as well as his right to vote and spealc, and he recovers said rights only when he shall have paid his whole debt to the lodge.
For some time prior to his death, said Cohn had been delinquent in the payment of his dues to his lodge, so that on the 26th day of November, 1884, six days prior to his death, the books of the lodge showed an indebtedness for dues and assessments of §10.25. On that day he paid that sum in full to the secretary of the lodge, said secretary receiving the money> 1 romising to place it before the lodge at its next meeting and so far as appears, said money still remains in the possession of the lodge, or of the secretary, who was one of its principal officers. We are of opinion that said payment was effectual to relieve said Cohn of the charge of delinquency, and that he was in good standing at the time of his death, within the meaning of said by-laws, unless there was, as the defendant claims, a valid sentence of suspension then in existence against him.
The records of Germania Lodge show that certain proceedings were had at a meeting of the lodge held on the 23d day of November, 1884, in relation to Colin’s delinquency, which it is alleged amount to a legal suspension. The record, verbatim, is as follows: “ The secretary notifies the lodge that Brother Joseph Cohn has received a lawful suspension notice to pay up at the latest to-day, and that the same was not paid. The president then, in the lodge, declared Brother Joseph Cohn legally suspended.” It Jalso appears that on the 22d day of October, 1884, the secretary mailed to said Cohn a notice of his indebtedness, and that unless a payment should be made within the thirty days next ensuing, said Cohn “ would be suspended in accordance with the law.” This seems to be the notice referred to in the proceedings for said suspension.
Was this suspension valid? The constitution adopted by the defendant for the government of its subordinate lodges provided that, “ The manner "of suspension for the non-payment of dues and assessments shall be detailed in the by-laws of every lodge, and is left to their option.” It is clear that this provision, which is a part of the fundamental law of Germania Lodge, required the adoption of by-laws fixing and prescribing the manner of suspending members for the nonpayment of dues and assessments, before the power to pronounce a sentence of suspension could be exercised. The language of said constitution is imperative and mandatory, and while it leaves the lodges free to adopt such mode of procedure in the matter as they see fit, the mode adopted, whatever it may be, is imperatively required to be embodied in the by-’aws of the lodge.
It is admitted, however, that Germania Lodge has never adopted any by-law on the subject of suspensions as required by the foregoing provisions of its constitution. It had then no mode of procedure consistent with or authorized by its organic law for suspending persons from membership, and its attempted suspension of Cohn was therefore wholly without authority and void.
The case would have been different, if there had been no provision in either the constitution or by-laws of the lodge on the subject of suspension. It might then have been held, perhaps, that it was an incidental power, inherent in organizations of that character, to suspend or expel its members for any cause which it might deem sufficient, and to adopt such mode of procedure in the premises as it might see fit. The admitted facts in this case, however, show that, by the organization and laws of the order, the subordinate lodges bear such relation to the Grand Lodge, that the latter was empowered to prescribe a code of laws or constitution for the organization and government of the subordinate lodges, and that in the exercise of that power it had required such lodges to provide by their by-laws for the manner of suspension from membership, and limited the power of suspension to the mode which should be thus provided.
But it is urged that, as Germania Lodge, in the absence of a by-law, has been accustomed to pursue a particular course of procedure, such custom should be given the force of a by-law. To this view we are unable to assent. It may be that in the ease of ordinary corporations, by-laws need not necessarily be in writing, but may be adopted by long continued and invariable custom, but the authorities on that subject do not hold that a custom may take the place of a by-law, but that it may be resorted to as evidence of the adoption of a by-law. But in the present ease, aside from the admission that the lodge passed no by-law on the subject of suspensions, no custom or usage is shown which affords any evidence of the adoption of an unwritten by-law. It appears merely that the lodge, in the matter of suspensions, has been accustomed to act in a particular manner, but it does not appear when, how long, or to what extent such custom has been pursued, or whether it has been uniform or only adopted in particular instances. This comes far short of such custom as will be construed into a r> by-law.
But there is another reason why the custom insisted upon can not be regarded as a by-law. The lodge passed, promulgated and caused to be published, a code of by-laws for the government of its proceedings in a great variety of matters, and we have failed to find any decision holding, that where a corporation has expressly adopted a code of by-laws, other by-laws will be implied from custom or usage. Indeed, the adoption and promulgation of a code of by-laws in the ordinary way, by an express vote of the members of the corporation, would seem to exclude the possibility of constructing additional by-laws from the mere customs or modes of procedure which the corporation may see fit to adopt in the administration of its affairs.
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Bailey, J.
The defendant is a voluntary organization, having for one of it objects the accumulation and administration of a fund. for the benefit of the widows, orphans or devisees of the. deceased members of the various subordinate lodges subject to its jurisdiction. Said fund is composed of contributions from said subordinate lodges, in proportion to their respective membership, and in consideration of such contributions, the defendant undertakes to pay the sum of 81,000 to the widow, orphans or devisee of each person who, at the time of his death, was a member in good standing in one of said subordinate lodges.
For several years Joseph Cohn, the plaintiff’s husband, was a member in good standing, of Germania Lodge, one of said subordinate lodges, under an arrangement by which the §1,000 payable at his death should be paid to the plaintiff.' On the 2d day of December, 1884, said Cohn died, and the plaintiff’s light to recover of the defendant the sum payable at his death, depends wholly upon the question whether said Cohn, at the time of his death, was a member in good standing of Germania Lodge.
By a law of the Supreme Lodge of the order, which is binding upon all subordinate lodges and their members, it is declared that a member shall be considered in good standing if he shall have paid all charges, dues and fines against him, in the manner and at the time provided by the laws of his district and lodge, and if he shall not be under sentence of suspension. One of the by-laws of the Germania Lodge provides that a member who does not pay his quarterly dues, fines and other demands to the lodge at the maturity of the legal time, may be declared in arrears, and he shall lose his financial demands on the lodge, as well as his right to vote and spealc, and he recovers said rights only when he shall have paid his whole debt to the lodge.
For some time prior to his death, said Cohn had been delinquent in the payment of his dues to his lodge, so that on the 26th day of November, 1884, six days prior to his death, the books of the lodge showed an indebtedness for dues and assessments of §10.25. On that day he paid that sum in full to the secretary of the lodge, said secretary receiving the money> 1 romising to place it before the lodge at its next meeting and so far as appears, said money still remains in the possession of the lodge, or of the secretary, who was one of its principal officers. We are of opinion that said payment was effectual to relieve said Cohn of the charge of delinquency, and that he was in good standing at the time of his death, within the meaning of said by-laws, unless there was, as the defendant claims, a valid sentence of suspension then in existence against him.
The records of Germania Lodge show that certain proceedings were had at a meeting of the lodge held on the 23d day of November, 1884, in relation to Colin’s delinquency, which it is alleged amount to a legal suspension. The record, verbatim, is as follows: “ The secretary notifies the lodge that Brother Joseph Cohn has received a lawful suspension notice to pay up at the latest to-day, and that the same was not paid. The president then, in the lodge, declared Brother Joseph Cohn legally suspended.” It Jalso appears that on the 22d day of October, 1884, the secretary mailed to said Cohn a notice of his indebtedness, and that unless a payment should be made within the thirty days next ensuing, said Cohn “ would be suspended in accordance with the law.” This seems to be the notice referred to in the proceedings for said suspension.
Was this suspension valid? The constitution adopted by the defendant for the government of its subordinate lodges provided that, “ The manner "of suspension for the non-payment of dues and assessments shall be detailed in the by-laws of every lodge, and is left to their option.” It is clear that this provision, which is a part of the fundamental law of Germania Lodge, required the adoption of by-laws fixing and prescribing the manner of suspending members for the nonpayment of dues and assessments, before the power to pronounce a sentence of suspension could be exercised. The language of said constitution is imperative and mandatory, and while it leaves the lodges free to adopt such mode of procedure in the matter as they see fit, the mode adopted, whatever it may be, is imperatively required to be embodied in the by-’aws of the lodge.
It is admitted, however, that Germania Lodge has never adopted any by-law on the subject of suspensions as required by the foregoing provisions of its constitution. It had then no mode of procedure consistent with or authorized by its organic law for suspending persons from membership, and its attempted suspension of Cohn was therefore wholly without authority and void.
The case would have been different, if there had been no provision in either the constitution or by-laws of the lodge on the subject of suspension. It might then have been held, perhaps, that it was an incidental power, inherent in organizations of that character, to suspend or expel its members for any cause which it might deem sufficient, and to adopt such mode of procedure in the premises as it might see fit. The admitted facts in this case, however, show that, by the organization and laws of the order, the subordinate lodges bear such relation to the Grand Lodge, that the latter was empowered to prescribe a code of laws or constitution for the organization and government of the subordinate lodges, and that in the exercise of that power it had required such lodges to provide by their by-laws for the manner of suspension from membership, and limited the power of suspension to the mode which should be thus provided.
But it is urged that, as Germania Lodge, in the absence of a by-law, has been accustomed to pursue a particular course of procedure, such custom should be given the force of a by-law. To this view we are unable to assent. It may be that in the ease of ordinary corporations, by-laws need not necessarily be in writing, but may be adopted by long continued and invariable custom, but the authorities on that subject do not hold that a custom may take the place of a by-law, but that it may be resorted to as evidence of the adoption of a by-law. But in the present ease, aside from the admission that the lodge passed no by-law on the subject of suspensions, no custom or usage is shown which affords any evidence of the adoption of an unwritten by-law. It appears merely that the lodge, in the matter of suspensions, has been accustomed to act in a particular manner, but it does not appear when, how long, or to what extent such custom has been pursued, or whether it has been uniform or only adopted in particular instances. This comes far short of such custom as will be construed into a r> by-law.
But there is another reason why the custom insisted upon can not be regarded as a by-law. The lodge passed, promulgated and caused to be published, a code of by-laws for the government of its proceedings in a great variety of matters, and we have failed to find any decision holding, that where a corporation has expressly adopted a code of by-laws, other by-laws will be implied from custom or usage. Indeed, the adoption and promulgation of a code of by-laws in the ordinary way, by an express vote of the members of the corporation, would seem to exclude the possibility of constructing additional by-laws from the mere customs or modes of procedure which the corporation may see fit to adopt in the administration of its affairs.
But even if the custom contended for should be given the force of a by-law, it seems clear that it was not pursued in attempting the suspension of Cohn. The following is the custom as set out in the record:
“A member who does not pay his dues and assessments to the lodge within four weeks after the quarter, shall be notified to pay the same within fourteen days, and if he does not pay he shall be considered in arrears, and he is not entitled to lodge benefits. A member so in arrears shall be notified by the secretary, in writing, to pay within thirty days, in default whereof the member shall be suspended.”
The dues as to which Cohn was delinquent were for the two quarters ending respectively June 30th and September 80th. The dues for the first of these quarters were payaFe. at the last meeting, which was the fourth Sunday in June, and for the second quarter the fourth Sunday in September. The only notice sent to Cohn in relation to the dues for the quarter ending June 30th, as shown by the record, was mailed to him May 22d, which was long before said dues were payabA The on'y other notice shown to have been sent him in relation to the dues of either quarter, was mailed October 22d, that notice requiring the payment of the dues of both quarters. It is not shown, as to the dues of either quarter, that after Cohn had failed to make payment within four weeks after the quarter, he was notified to pay within fourteen days, and failing to make payment within that time, reached that stage in the proceedings where he could be “ considered in arrears,” and after becoming so “ in arrears,” he was again notified to pay within thirty days, and make default in payment during all that period. But by the custom contended for, each of these steps was clearly essential to a valid suspension. It was necessary to wait four weeks after the expiration of the quarter, and then if the dues were unpaid, to notify the delinquent to pay within fourteen days. If he still remained delinquent, he was to he considered in arrears, and when so in arrears, he was to be again notified to pay within thirty days thereafter, and it was only when the delinquency had extended to the termination of this latter period, that sentence of suspension could be pronounced. There is no pretense that the fourteen days notice was given, or that any steps were taken to put Cohn “in arrears,” the first and only notice given after the expiration of either quarter being the thirty days notice which the secretary denominates a “suspension notice.” There is, then, no possible view of the case in which it can be held that the suspension of Cohn was valid or authorized. It follows that it was illegal and void. Such being the case, Cohn, at the time of his death, was entitled to be regarded, and should in law be regarded, as in good standing in his lodge. The court below then decided correctly in giving judgment for the plaintiff. The judgment will be affirmed.
Judgment affirmed.