delivered the opinion of the Court:
The decision of the Circuit Court disallowing and overruling the defendant’s plea to the jurisdiction is assigned for error, and the first question for us to consider is thus presented. Two answers are made to the defendant’s contention, (1) that the plea was insufficient to show want of jurisdiction, and (2) that the defendant, by appearing generally and answering the bill voluntarily submitted itself to the jurisdiction of the court, and thereby waived any error that may have been committed by the court in overruling the plea. The Appellate Court seems to have adopted the view that by answering, the defendant waived its plea, and to have decided the case, so far as this point is concerned, upon that theory. We are disposed, however, to adopt the other theory, and to hold that the plea was insufficient to show want of jurisdiction, and that it was properly overruled on that ground.
It is perhaps worthy of remark in passing, that there is nothing in the bill or plea, or in any other part of the record for that matter, showing, except by inference, when or under what statute the defendant association was incorporated. Its articles of incorporation are not before us, and while the bill alleges and the plea admits that the association, was incorporated under the laws of this State, it is not alleged whether the organization took place under those provisions of the “Act concerning corporations,” approved April 18, 1872, which relate to the formation of corporations not for pecuniary profit, or under the act of June 18,1883, providing for the incorporation of mutual benefit societies. The objects and purposes for which it was incorporated, as they are alleged in the bill and admitted by the defendant’s pleadings, would seem to indicate that it is a corporation which may have been organized under either of those acts. The only intimation in the entire record as to the date of incorporation is found in the following words: “Charter granted Dec. 1874,” printed at the top of the membership certificate which the bill seeks to enforce. This can scarcely he regarded as competent proof of the date, but of course, if the organization took place in December, 1874, it could not have been under the act of 1883. However the fact may be, the association, if it was incorporated for the purposes alleged and admitted, it is, by the ninth section of the act of 1883, brought under the provisions of that act, and also by the corresponding section of the act of 1887, revising the act of 1883, it is subjected to the provisions of that act.
The summons in the present case was issued by the Circuit Court of Sangamon county to the sheriff of Cook county and served in the last named county, as is claimed, in pursuance of the provisions of the “Act concerning the jurisdiction of Circuit Courts in cases instituted against life and fire insurance companies,” approved April 3, 1873. That act provides as follows: “The Circuit Court of the county wherein the plaintiff or complainant may reside, shall have jurisdiction of all actions hereafter to be commenced by any individual against any fire or life insurance company, either incorporated by any law of this State or doing business in this State. And all process issued in any cause commenced in the county wherein the plaintiff may reside, wherein an individual may be plaintiff and any such company defendant, may be directed to any county of this State for service and return.”
It is urged that this statute, which is usually published as section 3, chapter 110, of the Revised Statutes, was intended to apply only to suits at law, and can have no application to suits in chancery.- It may be admitted that what is usually known as the Practice Act has no reference to modes of proceeding in chancery eases, except as the language either expressly or by clear implication refers to such procedure. See Moore v. Tierney, 100 Ill. 207. But what is published as section 3 of chapter 110 is not and never was a part of the Practice Act, but is an independent statute, passed at a different time, and by its terms applicable as well to cases in chancery as to cases at law.
Prior to the passage of that statute, the mode of commencing suifs against and obtaining service upon corporations!, was prescribed by an act entitled, “An Act to amend chapter eighty-three, Revised Statutes, entitled Practice, ” approved February 3, 1853. That act was afterwards compiled and published as section 6, of the chapter of the Revised Statutes then in force entitled “Practice,” and it provided: “That in all eases where any suit has been or may hereafter be brought against any incorporated company, process shall be served upon the president of such company, if he reside in the county in which the suit is brought, and if such president be absent from the county, or does not reside in the county, then the summons shall be served by the proper officer by leaving a copy thereof with any clerk, etc., of such company, found in the county.” Two cases involving the construction of this statute arose and were decided at about the same time, viz, Stephenson Ins. Co. v. Dunn, 45 Ill. 211, and Winnesheik Ins. Co. v. Holzgrafe, 46 id. 422, the former being a suit at law and the latter a suit in chancery, and in both of which suit was brought in one county against an insurance company and process therein issued to" and served in another county. In both it was held that, under the statute above mentioned, the summons could not be sent from "one county to another for service, and that the service had in those cases gave the court no jurisdiction. In the Holzgrafe case, which was in chaneery, it was expressly held that the statute of 1853 applied to chancery cases as well as cases at law. It is a matter of history that the statute in relation to suits against-insurance companies now in force, was passed shortly after these two decisions were made, and it is highly probable that it was passed in view of those decisions, and for the purpose of remedying the serious inconvenience to parties desiring to bring suits against insurance companies arising from the provisions of the statute as thus construed.
It seems plain that, if the act of 1853 applied to proceedings in chancery, for the same and stronger reasons the present statute should be given ,the same application. The act of 1853 was passed expressly as an amendment to the Practice Act, while the present act is not thus limited, but was passed as an independent act, concerning the jurisdiction of Circuit Courts in cases, that is, cases in chancery as well as at law, against insurance companies. And to guard against misapprehension, the terms “plaintiff” and “complainant” are used, the former term being applicable to the actor in suits at law, and the latter to the actor in suits in chancery.
But it is urged that the defendant in the present case is not an insurance company, within the meaning of the statute above mentioned, and can not therefore be affected by its provisions. The object and purpose for which the defendant was incorporated, as the bill alleges and as the plea must be deeme,d to admit, was, to furnish pecuniary aid to the widows, heirs, devisees and representatives of deceased members of the association, and it is further alleged, by way of showing the mode in which the proposed aid was to be furnished, that it was provided by the constitution and by-laws of the association, that in case of the death of a member, on proof of such death, the association should assess and collect from each surviving member, the sum of $2.50, for the benefit of the heirs or devisees'of the deceased member, the same to be paid to him or them, to the amount of not exceeding $2500, within thirty days after the collection of the assessment.
There can be no doubt, we.think, that the benefits provided for by the constitution and by-laws of the association are in the nature of life insurance, and that the contract between the association and the member, evidenced by the constitution, by-laws and membership certificate, is, in substance, a policy of insurance upon the life of the member. See Rockhold, v. Canton Masonic Benevolent Society, 129 Ill. 440, and cases cited. It is true the membership certificate bears upon its face no promise of indemnity, but it entitles the holder to membership in the association and to all rights that appertain thereto, and it' is to be construed in connection with the constitution and by-laws, the same as though all of those documents were combined in one. Taken together, they constitute an undertaking on the part of the association, subject it is true to certain conditions which will be hereafter noticed, in case of the death of a member, on proper proof of his death, to levy and collect an assessment of $2.50 on each surviving member, and to pay the same over, to an amount not exceeding $2500, to a certain designated beneficiary or beneficiaries. This is clearly, in substance and effect, a contract of insurance, and an association organized for the purpose of entering into and performing contracts of that character, is in reality an insurance company.
But it is said that the defendant is not an insurance company within the meaning of the act in relation to suits against such corporations, because the statute under which the defendant was organized declares that such associations and societies shall not be deemed insurance companies.
Section 31 of the “Act concerning corporations,” approved April 18, 1872, that section being a part of the subdivision of the act relating to corporations not for pecuniary profit, as amended May 22, 1883, provides that: “Associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and members who have received a permanent disability, and where no annual dues or premiums are required, and where the members shall receive no money as profit or otherwise, except for permanent disability, shall not be deemed insurance companies.”
It may be noticed that the plea in this, case fails, by proper averments, to bring the defendant within the provisions of this statute.. There is no averment that no annual dues or premiums were required of its members, or that its members received no money as profit or otherwise, except for permanent disability. It is difficult to see how, without such averments, the defendant can be held to be exempted by this statute from the character and status of an insurance company.
Turning now to the act in relation to Mutual Benefit societies, approved June 18,1883, we find that the first section of the act provides for the organization of corporations, associations or societies for the purpose of furnishing life indemnity or pecuniary benefits to the widows, heirs, orphans or relatives-by consanguinity or affinity, devisees or legatees of deceased members, or accident or permanent disability indemnity to members thereof, and where members shall receive no money as profit, and»where the funds for the payment of such benefits shall be secured, in whole or in part, by assessment upon surviving members. Subsequent sections prescribe the mode in which associations of that character may be organized, and their affairs conducted and administered, and section 9 provides as follows:
“All corporations, associations or societies organized under the provisions of this act, or that have heretofore been organized within this State, under any charter, compact or agreement or statute of this State, for the purpose of furnishing life, accident or permanent disability indemnity or mortuary benefit on the assessment plan, in accordance with the provisions of the first section of this act, shall not be deemed insurance companies, nor subject to the laws of this State relating thereto, but shall comply with and eomform to all the requirements and provisions of this act.”
And in the same section, such associations are required to make to the Auditor of Public Accounts, annually, under oath, reports showing their financial condition, assets, liabilities, total amount of indemnity in force, number of members, number whose membership has terminated during the year and the cause thereof, total receipts and sources thereof, total expenditures and objects thereof, and the average amount paid on each certificate, and subsequent sections place such associations under the control and supervision of the Auditor. 1 Starr & Cur. Stat. 1350.
By an act approved June 16, 1887, the act last mentioned was revised and its provisions extended and enlarged, especially those conferring supervisory and visitorial powers over such associations upon the Auditor of Public Accounts; and section 9 of that act contains precisely the same provision as did the original act in relation to such associations being deemed insurance companies. 3 Starr & Cur. Stat. 729.
The object and purpose of these provisions exempting Mu-tual Benefit Associations from the character and status of insurance companies becomes apparent, when, we examine the general insurance laws of the State, and especially the “Act to organize and regulate the business of life insurance,” approved March 26, 1869. That act subjects every life insurance company incorporated or doing business in this State to a variety of rules, and requires of them the performance of various duties which would be both oppressive and inappropriate as applied to Mutual Benefit Societies. 'Before any of these societies had been organized, or any law enacted providing for their organization, the Legislature had passed general statutes providing for the organization and government of both fire and life insurance companies, and for the regulation of the entire business of fire and life insurance, and requiring all companies engaged in that business to comply with the -rules prescribed by those statutes. Subsequently, when Mutual Benefit Societies began to be organized, and that form of life insurance came into use, it became apparent that it would be impracticable to subject those societies to the same code of rules and regulations already in force for the government of the business of life insurance, and that an essentially new system of rules was required.
The first expedient adopted for relieving them from the necessity of complying with the provisions of the General Insurance Law was by simply declaring that they should not be deemed insurance companies. In the further progress of legislation, the precise reason for this declaration was more distinctly indicated. It was declared that they should not be deemed insurance companies, “nor subject to the laws of this State relating thereto, but shall comply with and conform to all the requirements and provisions of this act. ” They were thereby, in express terms, relieved from the duty of compliance with the General Insurance Law, and instead of it, they were required to comply with the provisions of the act relating specifically to that class of societies.
We therefore think it clear that, when these provisions are considered and construed in the light of the history of our legislation on the subject of insurance and insurance companies, that the legislative intention was merely to exempt Mutual Benefit Societies from the duty of complying with the General Insurance Law, and to substitute therefor a code of rules specifically applicable to that class of associations. This construction in our opinion does no violence to the language of these, statutes, but merely limits it to the subject matter which was manifestly in the legislative mind when the statutes were passed. There is nothing in the statutes themselves, nor in the circumstances attending their enactment, furnishing ground for the supposition that the Legislature had in mind the statutes regulating the jurisdiction of the courts, or the course of judicial procedure in suits brought against these societies. These are matters with which the Legislature was not then attempting to deal, and the language used, by fair construction, should be so limited as to have no-application to those subjects.
It may also be noticed that the same considerations of public-policy which induced the Legislature to authorize suits against insurance companies to be brought in the county where the-plaintiff resides, exist with equal or even greater force in case-of suits against Mutual Benefit Societies. These societies, in these late years, have become very numerous, and the amount of insurance effected through their instrumentality has become very large, and the beneficiaries are usually persons of small-means, and who can ill afford to go to a distant county for the purpose of enforcing their rights by suit. To give a construction to the statute which would compel them so to do, would not only impose upon them an intolerable burden, but would go far towards impairing the practical yalue of the insurance, obtained from these societies. In view of these considerations, we are not disposed to give the statutes a construction which will produce these results, unless the language employed is such as to preclude any other. This, as we think we have shown, is not the case, and we are therefore disposed to hold that the “Act concerning the jurisdiction of Circuit Courts in cases against life and fire insurance companies,” approved April 3, 1873, applies to Mutual Benefit Societies, as one of the classes of life insurance companies, and that the summons in this case was properly issued from Sangamon county to Cook county, and that its service by the sheriff of the latter county gave the Circuit Court of Sangamon county jurisdiction of the defendant. It follows that the plea to the jurisdiction was properly overruled.
It is next insisted that, upon the merits of the case, the decree is not supported by the evidence. This contention involves two propositions, (1) that James R. Robinson, at the time he applied for membership in the association and was admitted, was not eligible to membership; that he was then afflicted with pulmonary tuberculosis, the disease of which he afterwards died, and that he fraudulently concealed from the association that he had that disease, and obtained his admission as a member by means of such concealment. (2) That the directors of the association, in pursuance of the constitution and by-laws, investigated the complainant’s claim under the certificate of membership, and concluded, determined and decided-that his claim was not valid and disallowed it, and that their decision in respect thereto was final and conclusive upon the complainant.
Considering the first of these propositions, we are of the ■opinion that the evidence fails to show that, at the date of his admission to membership, James R. Robinson was afflicted with the disease alleged. He was admitted to membership May 9, 1887, and died August 3,1888, and it is not disputed that he died of tubercular consumption. The competent evidence in the record seems to show that at the date of his admission to membership, he was in good health, and that the disease of which he died was subsequently contracted. The only evidence tending to show the contrary is to be found in an unsworn certificate of Dr. Whitley, a physician who claims to have attended and treated the deceased for consumption, and a letter subsequently written by him to the secretary of the association. The certificate was dated August 4, 1888, the day after Robinson’s death, and the evidence tends to show that it was enclosed with or attached to the proofs of death subsequently served on the defendant. In it Dr. Whitley certifies that he had attended Robinson for a year and a half for consumption, and that he died of that disease. It appears that the secretary of the association subsequently wrote to Dr: Whitley for further information on the subject, and received from him in reply a letter in which he wrote that he had treated Robinson for the last three years of his life for piulmonary tuberculosis, and that that disease was the cause of his death. This certificate and letter seem to have constituted the evidence upon which the directors of the association acted in rejecting the complainant’s claim.
There is certainly no principle of law which justifies the consideration of Dr. Whitley’s letter as evidence having any tendency to prove the facts therein stated. It is a mere unsworn declaration by a third party and is clearly inadmissible. If the Doctor’s certificate was a part of the proofs of death, it was admissible for the purpose of showing compliance with the conditions of the contract requiring such proofs. But the complainant was not bound by it, and even if it can be considered at all as proof of the facts certified to, its force is overcome by the evidence of the witnesses, both professional and non-professional, that Robinson, at the date of his membership certificate, was in good health, and was not afflicted with consumption. Upon this issue of fact, the decree, in our opinion, is abundantly sustained.
Upon the other proposition, viz., that the decision of the-board of directors of the association rejecting the complainant’s claim is conclusive, so as to leave nothing for the courts to adjudicate, we are unable to concur in either the reasoning or conclusions of the learned counsel for the defendant. The position taken by them seems to be, in the first place, that the membership certificate, constitution and by-laws, when construed together, constitute no absolute contract for the payment of money to the proper beneficiary in case of the death of a member, but merely a promise to pay in case the directors shall so decide, thus leaving the matter of payment, and the ordering of an assessment, to the mere discretion of the board of directors. It is true article 5 of the constitution provides that assessments shall be made only by authority of the board of directors, and article 4 of the by-laws makes it the duty of the secretary, in case of the death of a member, to submit the proofs of death to the board, and provides that, with their indorsement and the approval of the president, the proper steps for making an assessment shall be taken. But it does not follow that these matters are left to the'mere discretion of the board. As we construe the contract, when a member dies, and proper proofs of death are served, unless some defense exists which is good in law, the amount which an assessment of $2.50 on each surviving member will produce, up to $2500, becomes absolutely payable, and it becomes the duty of the directors—a duty which the courts will enforce—to make and collect the proper assessment, and pay the same over to the designated beneficiary. In these respects we are able to perceive no essential difference'between the contract in this case and the ordinary indemnity contract existing between Mutual Benefit Societies and their members. The fact that the promise to pay is not embodied in the membership certificate is unimportant, so long as the contract is evidenced by other writings to which both the society and its members are parties.
But the most serious difficulty, as must be admitted grows out of those provisions of article 5 of the constitution relating to the power of the board of directors to decide upon claims against the association, and the conclu’siveness of those decisions. That it is competent for members of societies of this character to so contract that their rights as members shall depend upon the determination of some tribunal of their own choice, and that such determination shall be conclusive, may be conceded. But where the designated tribunal is the society itself, one of the parties to the controversy, or what is substantially the same thing, the board of directors, which is its official and organic representative, the courts will hesitate and even refuse to treat its decisions as final and conclusive, unless the language of the contract is such as to preclude any other construction. The judicial mind is so strongly against the propriety of allowing one of the parties, or its especial representative, to be judge or arbitrator in its own case, that oven a strained interpretation will be resorted to if necessary to avoid that result.
On referring to article 5 of the constitution, it will be found that, as set out and alleged in the defendant’s answer, the article is divided into three paragraphs, and its subject matter is such as to make that division natural and proper. The first paragraph merely provides that all claims against the association shall be referred to the board of directors, and that upon the approval of such claims by a majority of the board and by the president, they shall be paid by the secretary. It is perhaps doubtful whether the claims here referred to include the indemnity‘payable on the death of a member, as those are claims which the secretary can not ordinarily pay on their approval by the board, but only after the making and collection of an assessment. But however this may be, the provision certainly amounts to no delegation of power to determine conclusively the validity or invalidity of the claims presented. Its effect is to constitute the directors an auditing board to which claims are to be referred in the first instance before the secretary is authorized to pay them. In this it clearly has nothing to do with the final adjudication of contested claims. It makes no provision for a contest or hearing, and does not contemplate any of those proceedings which are dictated by the principles of natural justice, for the purpose of enabling a claimant to appear and present his proofs, and to be heard in relation to the validity of his claim.
In the second paragraph it is provided as follows: “It shall also be the duty of the board to examine all books, papers and accounts of the association, and know that the business is honestly and properly conducted. They shall decide all points of dispute and questions of doubt that may arise, and their decision shall be final.” What are the points of dispute and questions of doubt which they were to conclusively decide ? The most obvious and natural construction of the language used would limit this clause to the questions which might arise in the examination of the books, papers and accounts of the association and in ascertaining and seeing to it that its business was honestly and properly conducted. This interpretation most nearly accords with the grammatical structure of the paragraph, and as a further reason for its adoption, it should be noticed that the first paragraph of the article is intended to regulate the conduct of the association in dealing with third parties and those having claims against it, while the second paragraph relates to the conduct of its internal affairs and the regulation of its own business. It was entirely proper that in the matters referred to in the second paragraph, the power of the board of directors should be plenary, and its decisions final and conclusive, while the exercise of such power in the dealings of the association with its creditors would be highly objectionable. In view of these considerations, we are inclined to hold, that the proper and reasonable interpretation of the entire article should limit the power of the board of directors to render final decisions to the matters referred to in the second paragraph, and that no power is •given to determine conclusively the complainant’s rights under ■the certificate of membership in question.
But even if this were the less natural and obvious construction, still, so long as it is in any event a construction which is fairly admissible, it should be adopted to avoid a construction which would vest the board of directors of the association with power to determine conclusively the liablility of the association upon a membership certificate.
We have examined the authorities cited by counsel in support of their contention, and find that most of them involve ■questions different from those presented here and are therefore inapplicable. The case of Rood against this same association, reported in 31 Federal Reporter, 62, is in point, and in that ■case a different result was reached. While we have the highest respect for the distinguished judge who rendered that ■decision, we are unable to yield our assent to its conclusions.
After carefully considering the record, we are of the opinion that the decree of the Circuit Court was right, and the judg- . ment of the Appellate Court affirming the decree will accordingly he affirmed.
Judgment affirmed.