#### STATE ex rel. J. H. KERR, Solicitor, et al., v. ISAAC HICKS et al.

(Filed 1 March, 1911.)

1. Associations — Churches—Powers—Agreement—Custom.

A voluntary association of churches has no existence or powers except those contained in its formal articles of agreement or established by custom acquiesced in by the parties to it; and when, as here, it consists of an annual meeting- of delegates from its constituent members, the churches, to further certain common interests, the organization is dissolved upon adjournment into its individual elements until reassembled pursuant to the common agreement.

*2662. Same — School Trustees — Appointment—Regular and Called Meetings.

A voluntary association of churches chartered and established a school, naming, as authorized, trustees for the school. The constitution of the association provided that it “may he altered or amended at any regular meeting . . . by a two-thirds vote of the members present.” At a regular annual meeting the church of “Blessed Hope” was designated as the place for the next annual meeting. Subsequently, the officers of the association met and decided to “withdraw fellowship” from "Blessed Hope,” rescinded the resolution to meet there and designated a different church in another locality for that purpose, where a majority of the churches were represented by delegates. Delegates from the majority and minority number of the churches met at each of the respective places on the day appointed, and,at each meeting trustees for the'school were elected: Held, (1) that the meeting at “Blessed Hope” was the legal one, and the, trustees appointed by a majority vote of the delegates there present were those legally entitled to administer the affairs of the school, iáim.mons v. Allison, Its X. 0., 774, cited and distinguished.

3. Associations — Churches—Powers—Trustees—Appointment—Parties — Court’s Discretion.

At a meeting regularly held by a voluntary association of churches, trustees were appointed for a school chartered by the association. At the same time, but at a different place, there, was a meeting called by the officers of the association, when and where other and conflicting trustees were appointed. The question at issue being which set of trustees were the ones legally qualified to act, it was Held, (1) that the trustees appointed at these meetings were the real parties in interest, and it was not error for the trial judge in his discretion to order them to be made parties, so that the matter might bo decided upon its merits (Iievisal, 507) ; (2) no appeal lies from the refusal of a motion to dismiss, and an entry of appeal not perfected is treated as an exception on appeal from the final judgment.

4. Same — Exceptions—Appeal and Error — Procedure.

The amendment making additional parties does not affect the decision in this case, as thereby the subject of the controversy was not changed, the additional parties being the beneficiaries for whom this action was brought, and proper parties (Revisal, 400) ; and if it be conceded that the solicitor was an unnecessary party, that is not ground for an exception.

*267Appeal by defendants from Ward, J., at June Term, 1910, Of "WARREN.

The facts are sufficiently stated in tie opinion of Mr. Chief Justice Clark.

T. M. Pittman, Tasker Polk, and A. J. Harris for plaintiff.

T. T. Hicks for defendant.

Clark, C. J.

In 1871 a voluntary association, known as “Shiloh Association,” was formed by several Missionary Baptist churches for colored people. In 1883 the association purchased land for $2,500 and established a school called Shiloh Institute. Said school was chartered, Pr. Laws 1891, ch. 321, the aforesaid association procuring the charter and naming the trustees. The charter was amended, Pr. Laws 1903, ch. 49. In August, 1907, the association was composed of 58 churches. At the annual meeting held at that time, the church of “Blessed Hope” at Henderson was named as the place for the next meeting of the association. But, subsequently, the officers of the association called an extra session to be held at Manson, 27 December, 1907. The churches were notified and 44 of them sent delegates. At that meeting it was decided to withdraw fellowship from “Blessed Hope” Church, and the resolution to hold the next annual session at that church was rescinded, and it was decided to hold it at Ridgeway. The plaintiffs claim that they were duly elected trustees of the school by the representatives of 10 or 12 churches who assembled at “Blessed Hope” in 1908, in accordance with the resolution passed at the regular annual meeting of 1907, and at subsequent meetings, in pursuance of its action, and that the called meeting at Manson in December, 1907, was without authority and void.

The judge below held that there was no provision in the bylaws or constitution of the association for calling the extra session at Manson in December, 1907, and that the proceedings at said meeting were irregular and void, as were all the subsequent meetings held in pursuance thereof, and the election of trustees at such meetings; and. that the annual meeting held at “Blessed Hope” in 1908 was the regular meeting of the *268association, and that the trustees abosen thereat and at the subsequent meetings held in pursuance of the resolutions adopted thereat are the legally chosen trustees.

The question presented, then, is whether the action of a minority of the churches who met at the regular time and place, or that of the seceding majority held at an irregular time and place is valid. The constitution of the association provides: “Article 11. This constitution may be altered or amended at any regular meeting of the association by a two-thirds vote of the members presentThere is no provision which required a majority to constitute a quorum, nor which authorized the calling, by certain officers, of the meeting at Manson in December, 1907. The association is not incorporated, and the constitution, which is the contract between the parties, contemplates that a majority of the members present at any regular meeting should be the association.

A corporation has only such powers as are conferred by the charter creating or the laws regulating it, and a voluntary association has no existence or power except as contained in its formal articles of agreement or established by custom, acquiesced in by the parties to it. When the association consists, as here, of the annual meeting of delegates from its constituent members — the churches — to further certain common interests, the organization is dissolved, upon adjournment, into its individual elements until reassembled pursuant to the common agreement.

“In church organizations, those who adhere and submit to the regular order of the church, local and general, though a minority, are the true congregation.” Roshi’s Appeal, 69 Pa., 462; 8 Am. Rep., 280; Gable v. Miller, 10 Paige, 627. This was recently held by the House of Lords in England as to the State Church of Scotland (L. R. App. Cases, 1904), where a very small per cent of the “regulars” were adjudged entitled to hold the entire property of the organization. The courts will not decide such controversies beyond ascertaining which is the “regular” organization.

We concur, therefore, with his Honor, that the regular meeting held in 1908 at “Blessed Hope” in pursuance of the reso*269lution adopted at tbe regular annual meeting in 1907 constituted tbe legal association, tbougb tbe representatives of only a minority of tbe original 58 cburebes attended, and tbat tbe action of tbe seceding majority beld at Manson in December, 1907, bad no legal force or effect. There bas been a regular succession of meetings and tbe election of trustees rof Sbilob Institute thereat in pursuance of tbe action taken at “Blessed Hope,” tbe regular meeting, in 1908, and bis Honor properly beld tbat tbe plaintiffs, being such trustees, are entitled to administer tbe school known as Sbilob Institute.

This action was originally instituted by tbe State on relation of tbe solicitor, under Eevisal, 3922-4. Tbe amendment to tbe charter in 1903 provided tbat tbe trustees of Sbilob Institute should be elected by Sbilob Baptist Association, two at each annual meeting of tbe association. Tbe defendants in tbe action were tbe trustees elected at tbe Manson meeting and at tbe other meetings beld in pursuance thereof. It appearing tbat tbe real parties in interest were tbe trustees which bad been elected at tbe regular meeting beld at “Blessed Hope” in 1908, and at tbe successive meetings beld in pursuance thereof, bis Honor properly granted their application to be made parties plaintiff, so tbat the whole matter might be decided upon its merits, and refused to dismiss tbe action. It could have been no advantage to either plaintiffs or defendants to have dismissed tbe action tbat was then pending, which was brought to decide who were entitled to administer tbe trust, and tbe court in its discretion admitted the real parties in interest to be joined. Eevisal, 507.

No appeal lay from the refusal to dismiss (Johnson v. Reformers, 135 N. C., 385), and tbe entry of appeal, tbougb not perfected, will be treated as an exception on this appeal from tbe final judgment. Bernard v. Shemwell, 139 N. C., 446.

Tbe defendants were already in court, tbe subject of tbe controversy was not changed by tbe amendment, and tbe additional parties, being tbe beneficiaries for whom tbe action was brought, were properly made parties. Eevisal, 400. Even if it be conceded tbat tbe solicitor was an unnecessary party, this is not ground for exception.

*270The object of The Code system is to^decide cases upon the merits. Here the cause of action from the beginning was to determine which set of trustees should administer Shiloh Institute. The defendants were regularly made parties and had full opportunity to present their side of the question. If there was a defect of parties plaintiff originally, it was cured by the amendment which allowed the beneficiaries of the action, the other set of trustees, to be made parties plaintiff.

This case differs from Simmons v. Allison, 118 N. C., 774, where the congregation was permitted to vote as to its choice. There the congregation was the .constituent body. Here, by the constitution, the contract of the association, a “majority of the members present” at a regular meeting was the organic body and had the right to elect the trustees.

No error.