company were held estopped from questioning its powers after having had full notice of an arrangement in whch they had acquiesced and which had been advertised for more than twenty years. Doane v. Millville Mut. M. & F. Ins. Co., 43 N. J. Eq. 522.

1. State v. Moore, 38 Ohio St. 7. In Rockholder v. Canton Masonic Mut. Ben. Assoc. (Ill.), 19 N. E. Rep. 710, it was held that the defendant was not estopped to evoke the doctrine of ultra vires, because plaintiff had, from time to time after receiving his certificate, paid assessments, which were turned over by defendant to the persons entitled thereto under beneficiary certificates.

To same effect is Bloomington Mut. L. Ben. Assoc. v. Blue, 23 Ill. App. 518.

2. Sizer v. Daniels, 66 Barb. (N. Y.) 426; Richmond v. Judy, 6 Mo. App. 465; State v. Central Ohio Mut. Relief Assoc. etc., 29 Ohio St. 399; State v. Mutual Protection Assoc., 26 Ohio St. 19; State v. People's Ben. Assoc., 42 Ohio St. 579; State v. Standard L. Assoc., 38 Ohio St. 281; National Mut. Aid Assoc. v. Gonser, 43 Ohio St. 1.

3. One who becomes a member of a mutual insurance company after it has practically adopted the provisions of a statute authorizing the property insured to be divided into classes, and acted thereon for several years, cannot object, in an action to recover an assessment upon his deposit note, that the same were not formally adopted at a meeting regularly called for that purpose. Citizens' Mut. F. Ins. Co. v. Sortwell, 8 Allen (Mass.) 217.

4. Austin v. Searing, 16 N. Y. 112;

s. c., 69 Am. Dec. 665; Chamberlain v. Lincoln, 129 Mass. 70; Leech v. Harris, 2 Brewst. (Pa.) 587; White v. Brownell, 3 Abb. Pr., N. S. (N. Y.) 318; Lowry v. Stotzer, 7 Phila. (Pa.) 397.

The construction of all such constating instruments is the duty of the court, and neither the opinions of the officers of the society nor of its custom and usage in respect to their interpretation are admissible evidence in actions grow. ing out of their contractual relation, it the language used be not ambiguous. Wiggin v. Knights of Pythias, 31 Fed. Rep. 122; Davidson v. Knights of Pythias, 22 Mo. App. 263; Manson v. Grand Lodge A. O. U. W., 30 Minn. 509.

But, in cases involving property rights, a member may at once resort to the courts. He is not bound to leave the determination of such rights to 'the tribunals of the order or association; but if he consent to an adjudication by the society, he is bound as by an arbitration, in the absence of oppression, fraud, or the violation of the principles of natural justice. It is not within the power of any organization, by the provision of its constitution and by-laws, or by the conduct of its internal affairs, to deprive a member or class of members of any substantial property right. Forfeiture of the conventional charter of a society incorporated by the State will not divest its property, nor can the property be affected by a secession of part of its members. Even if unincorporated, the majority of a society have generally the right to cut loose from a superior governing body, and the minority have no redress if the property is used for the general purposes for

Houghton, 98 Ind. 149; s. C., 53 Am. Rep. 514; Supreme Lodge Knights of Pythias v. Schmidt, 98 Ind. 374; Bauer v. Samson Lodge, 102 Ind. 262; Supreme Commandery Knights of the Golden Rule v. Ainsworth, 71 Ala. 443; s. c., 46 Am. Rep. 332.

1. In Com. v. Wetherbee, supra, a contract had been made between the Connecticut Mutual Benefit Company and each of its members, and certificates of membership issued according to its charter, the consideration being assessments to be paid from time to time as levied by the managing agents. The court held that the contract did not differ in any essential particular of form or substance from an ordinary policy of mutual life insurance, and said: "The contract made between the Connecticut Mutual Benefit Company and each of its members, by the certificates of membership issued according to its charter, does not differ in any essential particular of form or substance from an ordinary policy of mutual life insurance. The subject insured is the life of the member. The risk insured is death from any cause not excepted in the terms of the contract. The assured pays a sum fixed by the directors and not exceeding $10 at the inception of the contract, and assessments of two dollars each annually, and of one dollar each upon the death of any member of the division to which he belongs during the continuance of the risk. In case of the death of the assured by a peril insured against, the company absolutely promises to pay to his representatives, in sixty days after receiving satisfactory notice and proof of his death, "as many dollars as there are members in the same division, the number of which is limited to five thousand. The payment of this sum is subject to no contingency but the insolvency of the corporation. The means of paying it are derived

from the assessments collected upon his death from other members; from the money received upon issuing other certificates of membership, which the by-laws declare may, after payment of expenses, be "used" to cover losses caused by the delinquencies of members;" and from the guarantee fund of one thousand dollars, established by the corporation under its charter."

A leading case on this subject is that of Farmer v. The State, 67 Tex. 561. A corporation had been organized under the name of the Masonic Mutual Benevolent Association of Texas, to provide for its members during life and their families after death, and provided in its constitution and by-laws to pay to members at death a certain sum in consideration of membership fee and future assessments. An examination as to health and physical condition by a physician was required before admission. It was held that the objects of the association were not benevolent, but that the consideration for the contracts between the members and the corporation was mutual profit; that it was an insurance company and amenable to all the provisions of Rev. St. Tex., tit. 20, relating to such companies. The appellants contended that a subsequent act of the legislature recognized the association as benevolent, and that it had made reports as required by the statute concerning such associations. The court said: "The evil the statute intended to remedy was the conducting of an insurance company for the profit of its officers, under the guise of benevolence and in evasion of the insurance laws. The statute recognizes the existence of mutual benefit societies claiming to be benevolent. It proposes to test whether they are really so, or carried on for the profit of their officers. It gives them an opportunity of estab lishing their benevolent nature by reporting certain named facts from which

not

this question can be determined. If they fail to make the report, the presumption is conclusive that it would disclose their object and effect to be the emolument of their officers by means of a life insurance business. If the report showed this to be their true character, they were not to be exempted from the burdens imposed on other insurance companies. There was such virtue in the report itself as would shield the society from the consequences of an act against which the statute was attempting to provide. If the report upon its face showed that the purpose of the organization was beneyolent, no conclusive presumption to that effect was established. The society could not protect itself by incorrect statements. The State had the best means it could suggest to call to account such corporations as were flying the flag of benevolence and yet doing business for the benefit of its officers. If this failed to disclose their true character, it did not intend to deprive itself of all power to ascertain that character by other appropriate evidence to allow violators of the law to escape upon their own statement of their innocence." In Bolton v. Bolton, 73 Me. 299, the subject underwent thorough investigation, and an institution with purposes similar to the above was held to be a mutual life insurance company. In State v. Critchett, 37 Minn. 13, the Supreme Court of Minnesota held that a company, formed by married men with the purpose of endowing the wife of each member upon marriage with a sum of money equal to the then number of members, was not a benevolent association. The court said: "The members paid a quid pro quo, and did not receive their money as an act of benevolence on the part of their fellow members." See also State v. Farmers' etc. Benevolent Assoc., 18 Neb. 281; Com. v. Wetherbee, 105 Mass. 149; May Ins. 550; State v. Citizens' Ben.

Assoc., 6 Mo. App. 163; State v. Merchants' Exchange etc. Soc., 72 Mo. 146; People v. Nelson, 46 N. Y. 477; State v. Standard L. Assoc., 38 Ohio St. 281.

The attempts of individuals to associate themselves together, either in a corporate capacity or otherwise and obtain the benefits of insurance, and at the same time escape the burdens and duties imposed upon insurance companies, have led to the prosecution of actions quo warranto as a result of which they have been in several instances declared to be mutual insurance companies and their charters held forfeited to the State, for noncompliance with conditions imposed by statute

upon insurance companies organized and conducted for profit.

The expositions given in the cases just cited, furnish a safe guide to the distinction between benevolent associations proper and those which are so in name only but really mutual insurance companies.

1. In Hellenberg v. District No. 1 of I. O. O. B., 94 N. Y. 580, the court said: "The charter and by laws of the corporation constitute the terms of an executory contract, to which the testator assented when he accepted admission into the order." In a similar case in Wisconsin the court said: "The constitution and by-laws certainly contain the contract which was entered into by the parties."

"The contract is contained in the certificates." Schunck v. Gegenseitiger etc. Fund, 44 Wis. 375.