The executive officers of the Ladies of The Maccabees and The Maccabees, fraternal beneficiary societies, incorporated under the laws of this State, believing it would be for the mutual benefit of the societies and membership if the two societies were merged or consolidated, prepared a written contract providing the terms and conditions upon which such merger and consolidation would be equitable and just for submission to the supreme governing bodies of each of the societies, in accordance with the provisions of Act No. 51, Pub. Acts 1923. That act provides:
"When any such fraternal benefit society shall propose to consolidate or merge its business or to enter into any contract of reinsurance, or to assume or reinsure the whole or any portion of the risks of any other fraternal benefit society the proposed contract in writing setting forth the terms and conditions of such proposed consolidation, merger or reinsurance shall be submitted to the legislative or governing bodies of each of said parties to said contract after due notice, and, if approved by a vote of two-thirds of the members of the supreme legislative or governing body of each of said societies, such contract, as so approved, shall be submitted to the commissioner of insurance of this State for his approval." * * *
The proposed contract was adopted by unanimous vote of the supreme legislative body of The Maccabees. The supreme governing body of the Ladies of The Maccabees convened in December, 1925, to consider the proposed contract. That body had a total membership of 306, and there were present 298 members. Under the laws of the order one-fourth of the total membership constitute a quorum for the transaction of business. Approval of the proposed contract required an affirmative vote of two-thirds of the members of the governing body. When the question was put 289 members were present, 192 members voted for *Page 461 ratification, and 96 members voted against ratification, and one member voted blank.
The question we are to decide is whether there was a vote of two-thirds of the members of the governing body in favor of ratification. The commissioner of insurance held that it required a vote of two-thirds of the full membership constituting the supreme body, and, as the vote fell short of two-thirds of the total membership of 306, there was no ratification, and for this reason he refused official approval. The point is also made, in behalf of the commissioner, that the record of the vote shows on its face that the proposal was not approved by two-thirds of the members present. We are asked to issue our writ of mandamus directing the commissioner in the premises.
We are satisfied that approval of the merger could be had by a vote of two-thirds of a quorum. The question is ruled byMissouri Pacifc R. Co. v. Kansas, 248 U.S. 276 (39 Sup. Ct. 93, 2 A.L.R. 1589). It is not deemed necessary to cite other authorities.
The commissioner was in error in holding valid action required a vote of two-thirds of the total membership of the supreme body. This brings us to the question of whether the vote recorded fell short of two-thirds of the members of the supreme governing body. Decision hinges upon the blank ballot. Ninety-six members voted no, twice 96, or 192, voted yes, and one voted blank. We must count the member voting blank as present and a member of the supreme body; 289 members being present, and one less than two-thirds voting in favor of ratification, it cannot be said that two-thirds of the members constituting the supreme body voted in favor of the merger.
In Brown v. Nash, 1 Wyo. 85, the question we are considering was determined. That case involved the vote of the legislature in passing a law over the veto of the governor. The speaker of the house was *Page 462 present, but was excused at his own request from voting. The court stated:
"Now if the speaker of the house was present, whether he voted or not, there were eleven members present, and it would require more than seven votes to make two-thirds. The law is not that one-third voted against the bill, but it is that two-thirds of the members present did vote for it. Now, if the speaker was present, no matter whether he voted for it or not, then there were eleven members present, and it would require at least eight Votes to constitute two-thirds; if he was absent, then there were but ten votes, and seven would be two-thirds. * * * So that it appears to us very clearly that this law was not passed in accordance with the provisions of the Constitution of the United States, or the organic act of this Territory, from the fact not that it did not receive two-thirds of the votes recorded, but that it did not receive the vote of two-thirds of the members present, and therefore is not one of the laws of the Territory."
The case of Wightman v. Village of Tecumseh, 157 Mich. 326, cited by plaintiff as authority to the point that the blank ballot cast should not be considered in estimating the requisite two-thirds as it was no vote, is not analagous. That was an election case and the proposition was carried by a required two-thirds vote of the legal votes cast, and, speaking of void votes rejected, it was said: "A void vote is of no more effect than no vote."
In the case at bar the statute, as we construe it, required a vote of two-thirds of the members of the supreme body present.
In the petition for the writ the proceedings claimed to have resulted in a vote authorizing the merger are set up as follows:
"The result of the fourth ballot was then tabulated on a separate sheet of paper and again read to the supreme body, and in open review signed by the great commander and great record keeper, without any objection from any member of the body, and is as follows: *Page 463
" 'The fourth and last ballot taken on the above resolution was as follows:
" 'Total number of ballots cast ....................... 289 " 'Total number of valid ballots ...................... 288 " 'Cast blank ......................................... 1 " 'Number of ballots necessary to carry the resolution. 192 " 'Ballots cast in favor of said resolution ........... 192 " 'Ballots cast against said resolution ............... 96
" 'The resolution was declared carried by a two-thirds vote.
" 'Read, approved and signed in open review, this 11th day of December, 1925.
"'EMMA E. BOWER, Great Record Keeper.
"'FRANCES E. BURNS, Great Commander.'
all of which appears in the certified copy of the proceedings of said supreme body filed with the commissioner of insurance."
The determination we make supports the action of the commissioner, and the writ should be denied, with costs to defendant.
BIRD, C.J., concurred in the result reached by WIEST, J.