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The plaintiff contends, first, that the election or appointment of any physician by the society was ultra vires; and, secondly, that the appointment of Doctor Conneen was irregular, unauthorized, and void. No other questions have been raised or discussed by counsel.
To determine whether the acts of a corporation are ultra vires or not, recourse must be had primarily to its charter. To be ultra vires, an act of a corporation must be shown to be not within the scope of its charter, nor within its express or implied powers. In this case tho charter is not before us. Both parties are content with such assumptions as may be made from the by-laws. Therefore the court will be content. There appears to be no specific or express warrant for the appointment of a physician by this society. But the society, though incorporated, partakes largely of the character of a mutual association for mutual aid and protection. It has no stockholders nor stock. Its object is to protect the interests of its members. It pays sick benefits to its members, and we must assume that it has the right to do so. Affording relief to its members by furnishing them the care of a physician in time of sickness is closely allied to the payment of sick benetits, and we think its corporate power to do so might be fairly implied from the general scope of the corporate purposes. The implied powers of a corporation are not limited to such as are indispensably necessary to carry into effect those which are expressly granted, but comprise all that are necessary, in the sense of being appropriate, convenient, and suitable for such purposes, including the right of a reasonable choice of means to be employed. (Cyclopedia of Law, vol. 10, p. 1097; 1 Cook on Corporations, sec. 3.)
But notwithstanding the appointment of a physician may be within the scope of the corporate powers of the society, the plaintiff further contends that the payment of a salary to Doctor Conneen would be in express violation of the by-law which declares that the funds of the society shall be appropriated for no other purpose than that necessary “for the maintenance of wages, burying the dead, and other incidental expenses.” The payment of a salary to a physician is certainly not within any of these purposes. But it is argued for the defendants that the binding force of this and all other by-laws is much modified and weakened by that one which provides that resolutions adopted by the society “ for any special purpose shall be as binding on its members as if they were embodied in the by-laws." That by-law gives to a mere resolution the effect of a by-law. By-laws are simply the rules of corporate government. While they aid in the orderly transaction of the corporate business, they also serve sometimes as a protection of the corporation itself, or of minority members, against ill-advised or illegal acts of the majority. It is within the power of the corporation to modify, limit, or abrogate them. And one legally adopted may, in effect, limit or repeal an old one, though not expressly so stated. As we have already pointed out, these by-laws themselves provide for the payment of sick benefits. And as this is outside of and inconsistent with, the by-law in question, the latter must be regarded as so far modified, at least.
Assuming, then, but not deciding, that the appointment of Doctor Conneen, with a salary, ratified as it was by the action of the society, was in effect a resolution adopted by the society for the special purpose, what was its effect in view of the by-law limiting the right to expend money to specific purposes, of which a physician's salary was not one? Was it valid? If it was valid, it had the effect of so far amending the by-law. Practically it abrogated the by-law. For, if a simple resolution could amend the by-law in one particular or one instance, it could do so in all particulars and in all instances. Money could be voted for any purpose within the chartered powers of the society, the by-law to the contrary notwithstanding. The by-law would thus become of no effect. It would cease to be a protection to the members which it was evidently intended to be. We do not think such is the proper construction to be placed upon the by-law which provides that l'esolutions adopted by the society shall be as binding as if embodied in the by-laws. That by-law, as we construe it, gives to resolutions the effect of by-laws only when the resolutions are not inconsistent with the by-laws-in other words, only when they would not, if operative, have the effect of amending or repealing the by-laws. But the society can not override and abrogate a by-law, by a simple resolution, in favor of some object which is forbidden by the by-law. The action of the society in providing for the payment of a salary to a physician was clearly inconsistent with the by-law wbich provides that “the funds of the society shall be appropriated for no other purpose than that necessarily incurred for the maintenance of wages, burying the dead, and other incidental expenses,” and hence was inoperative and yoid.
The plaintiff, a member of the society, has an interest in the society's funds, and is entitled to the protection of the by-law, and he may call upon the court for its enforcement.
LAWS OF VARIOUS STATES RELATING TO LABOR ENACTED SINCE
JANUARY 1, 1904.
[The Tenth Special Report of this Bureau contains all laws of the various States and Territories and of the United States relating to labor in force January 1, 1904. Later enactments are reproduced in successive issues of the Bulletin from time to time as published.]
ACTS OF 1904.
CHAPTER 61.- Inspection of factories Employment of labor-Department of labor.
1. No child under the age of fourteen years shall be employed, allowed or permitted to work in any factory, workshop, mill or place where the manufacture of goods of any kind is carried on; any corporation, firm, individual, parent, parents or custodian of any child who shall violate any of the provisions of this section, shall be liable to a penalty of fifty dollars for each offense.
2. The word custodian as used in this act shall include any person, organization or society having the legal custody of a child.
3. If at the time of the employment of a child, the proofs of age specified in subdivisions I. and II. of this section, are filed with the corporation, firm or person employing the child, such proofs shall be conclusive evidence of the age of child in a suit against such employer for a violation of section one: Provided, however, That correct copies of all papers, certificates, passports and affidavits relating to such employment shall be mailed, postage prepaid, to the department having charge of the enforcement of this act, at Trenton, New Jersey, within twenty-four hours after the same are filed, together with a statement of the legal name of the person, firm or corporation employing such child.
I. NATIVE BORN CHILDREN.
The parent, parents or custodian shall make and swear to an affidavit before some officer authorized by the law of this State to take affidavits, setting forth the following facts: The name of the child in full; his or her residence, giving street and number; place where and year, month and day when born; name of father; maiden name of mother; church attended, if any; school last attended and time when, if any, and where the church and school are situated; if child was baptized, name and location of church or parish in which such baptism took place; there must accompany such affidavit a transcript of the record of the child's birth; duly attested by an officer having by law the authority to keep records of birth in the State, county, town or city in which the child was born; if no such birth record can be obtained and the child was baptized, then a certified copy of the baptismal record of the church or parish in which such baptism took place, duly certified as a true copy, under the hand of the person having the custody of such church or parish records, shall accompany the affidavit, and the affidavit shall set forth the age of child at time of baptism.
II. FOREIGN BORN CHILDREN.
An affidavit to be made by the same persons and containing the same statement of facts as in the case of native born children, with an additional statement that the child named in the affidavit is the same mentioned and described in the passport under which the child was admitted to this country; a true copy of said passport must in all cases be attached to the affidavit.
III. OTHER CHILDREN.
The commissioner shall have power to issue permits of employment to children upon the production of evidence of the child's age satisfactory to him: Provided, That he shall first be satisfied that the child can not obtain a transcript of birth record, a baptismal certificate or passport, as provided in either subdivision I. or II.
4. In any suit brought to recover a penalty for violation of section one of this act, a copy of the baptismal record, certified to be a true copy under the hand of the person having the custody of such records for the church or parish in which such child was baptized, shall be prima facie evidence of the child's age (provided, that in case the age of the child is not set forth in the baptismal record, that there shall be other proof showing the age of the child at the time he or she was baptized).
5. The commissioner, assistant or any inspector is hereby empowered to demand of any parent, parents or custodian, proof of the age of a child satisfactory to the commissioner, and such parent, parents or custodian shall, within five days after such demand is made, furnish to such officer proofs of such child's age; and in event of the failure to procure and furnish such proof of age, such child shall be discharged by his or her employer upon notice in writing signed by the commissioner, and shall not be reemployed until such proof of age shall have been furnished to the commissioner; any person violating the provisions of this section shall be liable to a penalty of fifty dollars for each offense.
6. Åny one who shall swear falsely to any affidavit or present any cerificate or passport which he or she knows to be false, and any person or persons who shall aid, assist or advise the making of a false affidavit or the obtaining of a false certificate or passpor', shall be liable to a penalty of fifty dollars for each offense.
7. The commissioner, assistant or the inspectors shall have power to demand a certificate of physical fitness from some regular practicing physician in the case of minors under the age of sixteen years, who, in the judgment of such officer, shall be physically unable to do the work in which such minor is employed, and shall have the power to prohibit the employment of such minor until he or she shall produce a certificate of physical fitness; and any manufacturer or employer who shall retain in his employ a minor after such certificate shall be demanded, shall be liable to a penalty of twenty-five dollars.
8. A corporation, firm or person, owning or operating a place coming under the provisions of this act and employing, allowing or permitting minors under the age of sixteen years to work therein, shall keep or cause to be kept in the main office of such place, in the town or city where such place is located, a register in which shall be recorded the names, places of residence and time of employinent of all such minors working under certificates, tảanscripts, passports or affidavits; such registers and certificates, transcript; and affidavits shall be produced for inspection upon demand of the commissioner, assistant or any of the insectors; truant officers shall have the same right as inspectors to examine such registers and the certificates, transcripts, passports or affidavits, when authorized in writing so to do by the commissioner; any corporation, firm or person failing to keep such register or refusing to permit the persons herein authorized to inspect the same or the certificates, transcripts, passports or affidavits, shall be liable to a penalty of fifty dollars for each offense.
9. No minor under the age of sixteen years shall be employed, permitted or allowed to work in places coming under the provisions of this act, more than ten hours in a day or fifty-five hours in a week; any corporation, firm or person permitting or allowing any violation of the provisions of this section, shall be liable to a penalty of fifty dollars for each offense.
10. Affidavits of the age of children made and filed with the manufacturer before this act takes effect, shall have the same force and effect as the proofs required under subdivisiony I. and II. of section three, of this act.
11. The openings of all hoistways, hatch ways, elevators and well-holes upon every floor of any place coming under the provisions of this act, shall be protected by good and sufficient trapdoors or self-closing hatches and safety catches, or strong guardrails at least three feet high, and shall be kept closed and protected at all times except when in actual use by the occupant of the building having the use and control of the same.
12. All the main doors, both inside and outside of places coming under the provisions of this act, shall open outwardly or be sliding doors, and shall be kept unbolted and unlocked during the hours of employment.
13. The owner or person in charge of any of the places coming under the provisions of this act, where machinery is used, shall provide, in the discretion of the commissioner, belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys; whenever practicable, all machinery shall be provided with loose pulleys, all vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws, drums and machinery of every description shall be properly guarded; no person shall remove or make ineffective any safeguard around or attached to such machinery, vats or pans while the same are in use, unless for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced; if the machinery, or any part thereof, or any vat, pan or vessel containing molten metal or hot liquid is in a dangerous condition or is not properly guarded, the use thereof may be prohibited by the commissioner, and a notice to that effect shall be attached thereto; such notice shall not be removed until the machinery is made safe and the required safeguards are provided; and in the meantime such unsafe or dangerous machinery, vats, pans, or vessels containing molten metal or hot liquid shall not be used; when, in the opinion of the commissioner, it is necessary, the halls leading to work-rooms shall be provided with proper lighting facilities.
14. All corporations, firms or persons conducting a manufacturing business in any of the places coming under the provisions of this act, where emery wheels or emery belts of any description are used, either solid emery, leather, leather covered, felt, canvas, linen, paper, cotton, or wheels, or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers or similar apparatus, which shall be placed over, beside or under wheels or belts in such a manner as to protect the person or persons using the same from the particles of the dust produced and caused thereby, and to carry a way the dust arising from or thrown off by such wheels or belts while in operation, directly to the outside of the building, or to some receptacle placed so as to receive and confine such dust: Provided, That grinding machines upon which water is used at the point of the grinding contact and small emery wheels that are used temporarily for tool grinding in small shops employing not more than three persons at such work, shall be exempt froin the provisions of this section if so ordered by the commissioner.
15. It shall be the duty of any person, firm or corporation conducting such manufacturing business, to provide or construct such appliances, apparatus, machinery or other things necessary to carry out the purpose of this act, as set forth above, as follows: Each and every such wheel shall be fitted with a sheet or cast-iron hood or hopper of such form and so applied to such wheel or wheels that the dust or refuse therefrom will fall from such wheels or will be thrown into such hood or hopper by centrifugal force and be carried off by a current of air into a suction pipe attached to some hood or hopper.
16. Each and every such wheel six inches or less in diameter shall be provided with a round suction pipe three inches in diameter; wheels six inches to twentyfour inches in diameter, with round suction pipe five inches in diameter; and all wheels larger in diameter than those stated above shall be provided each with a round suction pipe not less than six inches in diameter; the suction pipe for each wheel so specified must be full size to the main trunk suction pipe, and the main suction pipe to which smaller pipes are attached shall in its diameter and capacity be equal to the combined area of such smaller pipes attached to the same, and the discharge pipe from the exhaust fan connected with such suction pipe or pipes shall be as large or larger than the suction pipe.
17. It shall be the duty of any person, firm or corporation operating any such place to provide the necessary fans or blowers to be connected with such pipe or pipes, as set forth in this act, which shall be run at the rate of speed such as will produce a pressure of air in such suction or discharge pipes sufficient to raise a column of water not less than five inches in a U-shaped tube; all branch pipes must enter the main trunk pipe at an angle of forty-five degrees or less; the main suction or trunk pipe shall be below the emery or buffing wheels and as close to the same as possible, and shall be either upon or beneath the floor on which the machines are placed to which such wheels are attached; all bends, turns or elbows in such pipes must be made with easy, smooth surfaces, having a radius in the throat of not less than two diameters of the pipe on which they are connected.
18. It shall be the duty of the commissioner to make orders in writing for the carrying into effect the provisions of sections fourteen, fifteen, sixteen and seventeen.
19. Not less than two hundred and fifty cubic feet of air space shall be provided for each employee or operative at work in a room in a place within the meaning of this act between the hours of six o'clock in the morning and six o'clock in the evening, and not less than four hundred cubic feet of air space for each employee so employed between the hours of six o'clock in the evening and six o'clock in the morning: Provided, In all cases where the amount of air space provided does not exceed the amount above fixed, that such room is lighted by electricity during all hours that artificial lights are necessary and persons are employed therein, unless a written permit shall be obtained from the commissioner.
20. The owner, agent or lessee of a place coming under the provisions of this act, or employer, shall provide in each workroom thereof proper and sufficient means of ventilation; in case of failure the commissioner shall order such ventilation to be provided; such owner, agent, lessee or employer shall provide such ventilation within twenty days after the service upon him of such order in writing, and in case