The Savannah morning news. (Savannah, Ga.) 1900-current, 1903-12-04

! original tract of seventy acres. and
| that they, and they alone, have the
| power TO govern the cemetery; to
elect officers: make bylaws and do
| any other act which it is complement
| for the corporation to do under its
charter. II is said that the charter it
! self limits its members to those who
| answer to the description of lot own
| ers and that any attempt by any per-
/ son, who is not a lot owner, and who
is not acting as such. to control the
corporation is an illegal and unWar-
ranted usurpation, and the acts done
by any such are absolutely void alb
: initiO. He therefore, takes the position
( that the Introduction of the so-called
stockholders" who hold scrip under
! the arrangement entered into in June,
1869, into the control and management
of the corporation is a direct violation
of the charter. and that all their acts
are void. He insists that the charter
having limited it's members to lot own
ers that these "stockholders" were
wholly unknown to the fundamental
law Of the corporation. and that they
could not he injected into it without
legal amendment to the charter. He
goes further and takes the position
that it is not a mere irregularity, but
that, on the contrary, there is alb
solute want of power on the part of
the corporation to abdicate its corpor-
ate functions in favor of strangers who
are excluded from membership by the
express terms of the charter and
that the acts of these persons. done
1 in the name of the corporation, are
absolutely void.
He further contends that the bylaws
are unreasonable. and for that reason
would be without validity even if they
were made by properly constituted di-
rectors.
On the part of the plaintiff it is in
sisted that at the meeting Of June 3.
1908, when the bylaws was made
which is involved in this dispute, three
of the persons present and acting were
lot owners, and that the fourth was
, the representative, by proxy or power
of attorney, of one who was a lot
owner.
He further contends that even if
these were not true, all of those who
hold lots in the cemetery at Bonaven-
ture, and who are the employers of
the defendant have acquired title since
June 2, 1862 and that they are estop-
ped by the recitals in the deed to dis
pute the right of the directors to make
!, the bylaw in question. He insists
that they cannot hold under a deed
: made by those directors. and at the
same time. and in the same breath,
say that they are not the directors.
He claims that if they were so far di-
rectors as to make conveyance of the
property OF the corporation, which is
legal and valid, they must be directors
qualified to make bylaws for the gov
eminent of that property; in other
words, his contention is that these
parties can only acquire the footing
of lot owners by virtue of the action
of these very directors whose legal
status the lot owners seek to attack
and he insists that if these directors
are not legal officers then these lot
owners have no standing in court for
they only become lot owners through
the official action of those very di-
rectors or their predecessors.
AS to the estoppel, counsel for the
defendants insists that there can be
no estoppel where the act of the in
corporation, which it is claimed works
an estoppel upon the individual, is
one which is ultra wires and void, and
he contends, in this connection, that
the corporation not having the power
to do the act in question it cannot
derive validity from any acquiescence
by individuals upon the principle,
where it is a question of power in a
corporation, that which cannot be
done directly cannot be done indi-
rectly.
Taking up, first, the question of
the character of the bylaw, 1 am of
the opinion that it is reasonable 1t
may be even more strongly stated. 1t
is difficult to see how a cemetery open
to ALL in the suburbs of large city,