The following is a copy of the complaint in this action :—

The only issues upon which any point is made on this appeal arise from a denial by defendant that the plaintiff was a member of the “Pacific Endowment League” in good standing on the thirteenth day of January, 1891, or at any time since; and the averment that he failed to pay eighteen assessments levied *252 Toy the league on January 2, 1891, and ipso facto forfeited and lost his right of membership in said league, and has ever since remained suspended. !

The court found for the plaintiff upon all the issues of fact, and gave judgment accordingly.

The defendant appeals from the judgment and from an order denying its motion for a new trial.

The only point made by appellant is that the evidence does not justify the finding that the plaintiff was a member of the defendant association, and in good standing on January 13, 1891; and whether he was so or not depends solely upon the validity of the eighteen assessments which, it is admitted, the plaintiff refused to pay. If those assessments were valid, his refusal to pay them effected a suspension of his good standing as a member of the league; otherwise he was a member in good standing on January 13, 1891, and was then entitled to payment of the coupon set out in his complaint.

The defendant association or league was organized on March 8, 1888, and the plaintiff became a member thereof on March 9, 1888. On August 6, 1888, the defendant issued to plaintiff an “endowment certificate,” by which it became obligated to pay to plaintiff $5,000 in ten equal coupon installments of $500 each, at the times and upon the condition expressed in the coupons. The first of said coupons matured January 13, 1891, and upon it this action was commenced January 29,1891.

The by-laws of the league, as they were at the time plaintiff became a member, and remained until December 28, 1889, do not add to or change the condition expressed in the coupon, namely, that plaintiff “shall be a member in good standing on the thirteenth day of January, 1891 ”; but they provide that failure to pay quarterly dues and assessments “suspends a member without further action.” The quarterly dues are $1.50 and the regular authorized assessments are levied monthly according to fixed rates, dependent upon the age of the member assessed (the plaintiff’s rate being $3.50 per month). Besides this regular monthly assessment, section 3 of article IX. of the by-laws provides: “ When the demands on the endowment fund require, the levy of additional assessments shall be made.” ¿Professing to act by authority of this section, the directors, *253 on January 1, 1891, thirteen days before the coupon in suit matured, levied eighteen special assessments of $3.50 each on plaintiff, all payable immediately, and addressed to plaintiff the following notice thereof; —

Article I. of the by-laws provides; “There shall be a board of nine directors invested with full power and authority to enact laws for the government of the league.”

Article IV. as it existed from the organization of the league until December 28,1889, provided that “coupons shall be paid on the day they mature by warrant on the treasurer, .... upon surrender of the coupon.” But this article was amended December 28, 1889, by adding thereto the following. “Provided the dues for the quarter, and the assessment or assessments levied for the month in which the coupon is payable, have been paid.”

*254 At the same time, December 28,1889, a new'article (numbered XXI.) was adopted as follows: “There shall be a reserve fund created by setting aside from the receipts in the endowment fund such portion as shall be deemed necessary by the board of directors for the protection of the members, and placed at interest.” Section 6 of article IX. provides: “The proceeds from assessments and any accumulation of interest derived from investment of assessment moneys constitute the endowment fund, from which all payments for maturing coupons are made, and the endowment fund shall not be used for any other purpose whatsoever.” Article XVIII. provides: “All moneys other than those mentioned in section 6 of article IX. go into the general fund, which shall be used to defray the expenses of the league”— this fund being composed of the initiation fees ($5 each), the quarterly dues of members ($1.50 each, or $6 a year), and certain fees and fines provided for.

The above amendment of article IV. and the adoption of article XXI. were evidently intended to authorize the-creation of a reserve fund at the expense of the endowment fund, and thereby so reducing the latter as to justly the levying of the eighteen, or any number of additional special assessments, at the discretion of the board, all payable within the month in which coupons are to mature, as a condition of the payment of such coupons. In • this way it was proposed to make “ the endowment fund require the levy of additional assessments,” in the sense of section 3 of article IX. above set out. In no other way could the board have made the endowmeut fund “ require the levy of additional assessments ” to meet the demands upon it for the payment of coupons maturing in the month of January, 1891; since it appears, from an official report of the secretary, issued January 1, 1891, that the league then had in its treasury $83,034.80 properly and lawfully applicable to the payment of mature coupons, though the board had nominally divided it into three funds, as follows: —

*255 The same report of the secretary shows that $62,000 was disbursed from the endowment fund in payment of matured coupons during the year 1890, leaving the balance of $83,034.80; but it does not appear that any special assessment was levied upon the holders of the coupons paid during that year, the payment of which was enforced or required as a condition precedent to the payment of those coupons.

J. Alfred Lueders, who was the secretary of defendant from its organization until May, 1891, and since its president, testified in explanation of the eighteen special assessments, as follows: —

In his said report of January, 1891, the secretary further says: “ This is a measure adopted for the equalization of payments, and for the protection of those members whose first coupon falls due at the later date, and as the application for membership was made by every member for a certificate of $5,000, of which a coupon is only a part, this action is amply justified, and meets with the cordial approval of every well-meaning member.”

, It is obvious that the defendant association was brought into existence for the sole benefit of its promoters and officers, who were to feed upon the so-called general fund which was sacredly dedicated to them; and quite as obvious that it was constitutionally doomed to a short life; hence, the doctoring to prolong the agony of its sickly existence. It is, however, the creature of contract, and must be governed by the law of contracts. Hot being incorporated its written articles of association constitute a contract by which the duties of its officers, the duties and obligations of its members among themselves, and the scope of its business are to be defined and regulated. Its articles of association bear to it the same relation that a charter bears to an incorporated society, and constitute its fundamental law, in accordance with which all subsequent by-laws, regulations and amendments must be made. (Niblack on Mutual Benefit Societies, sec. 1; Bacon’s Benefit Societies, secs. 37, 62 notes *257 to Austin v. Searing, 69 Am. Dec. 670 ; Otto v. Journeymen Tailors’ Union, 75 Cal. 309 ; 7 Am. St. Rep. 156 .) The obligation of this class of contracts for the payment of money, or for the security of any other right of property, are as sacred as those of any other contract, and a breach thereof will be remedied by the courts. (Bacon’s Benefit Societies, secs. 61 a, 105, 106, 107, and cases cited.) The mere fact (conceding it to be such) that the articles of association constituting the contract do not operate equally upon the individual members, confers no authority upon the directors to change or amend such articles for the purpose of “equalization of payments ” or other burdens imposed by the original compact otherwise than authorized by the original articles. As such change or amendment would impair the obligation of the original contract, it could have been made only by consent of all members to be affected thereby; and such consent is not implied in article I., which confers upon the board of directors power “to enact laws for the government of the league”; because it must have been understood that this power was limited by the laws of the land with reference to which the article conferring it must be construed. (Niblack on Mutual Benefit Societies, secs. 20, 24; Bacon’s Benefit Societies, sec. 84.)

Besides, “the equalization of payments” sought to be effected by the eighteen assessments, according to the testimony of the president, could have been accomplished only by compelling each member to pay his own coupons as they matured, in addition to his quarterly dues, initiation fees, fines, etc., for the support of officers. This, though not highway robbery, would have killed the institution immediately.

It is claimed that the levying of the eighteen assessments was-authorized by the original section 3 of article IX., because, it is said: “Thedemands on the endowment fund required” such additional assessments; yet it appears that the amount of the coupons falling due in January, 1891, was only §23,500, and that there was then in the endowment fund $83,000; for there was no provision in the original articles for creating a reserve fund from the receipts of the endowment fund, nor for transferring any part of the endowment fund to any other fund; nor any provision in either the original or amended articles for an *258 "“emergency fund”; and, therefore, the alleged transfer of $74,104 from the endowment fund to the supposed reserve and emergency funds had no actual existence. Indeed, there is no evidence of any resolution of the board to that effect. Besides, section 6 of article IX. provides that the endowment fund shall not be used for any other purpose than the payment of matured coupons. Eor what purpose could any part of the endowment fund have been reserved? The placing of such portion of it as was not immediately needed at interest was no reservation of it from the purpose to which it was exclusively dedicated; nor is it easy to conceive of any purpose or occasion for any “ emergency fund.” All possible demands upon the endowment fund were payable in definite sums at fixed times. There was no chance for any unexpected valid demand upon that fund.

It follows that there was no legal necessity for levying the eighteen special assessments on January 1, 1891, and, therefore, they were invalid. (Thomas v. Whallon, 31 Barb. 178 ; Pacific Mut. Ins. Co. v. Guse, 49 Mo. 332 ; 8 Am. Rep. 132 ; Niblack on Mutual Benefit Societies, sec. 277.) In levying assessments the directors act ministerially and not judicially, and, therefore, no presumption arises in favor of their legality or regularity (Niblack on Mutual Benefit Societies, sec. 280; Bacon's Benefit Societies, sec. 377); nor can assessments be made for anticipated losses unless provision therefor is made in the articles of association. (Rosenberger v. Washington Mut. F. Ins. Co., 87 Pa. St. 207; Crossman v. Massachusetts Ben. Ass’n, 143 Mass. 435 .)

There are other probably valid objections to the eighteen special assessments, but the foregoing are sufficient to show them to have been invalid. Being invalid, the refusal of the plaintiff to pay them did not have the alleged effect of suspending him from good standing as a member of the league.

I think the judgment and order should be affirmed.

Temple, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Fitzgerald, J., McFarland, J.

De Haven, J., concurring.—I concur in the judgment.