(155 Ark. 450, 244 S. W. 719.) and that, according to the undisputed evidence, appellee is only entitled to recover $124.40, "the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured." Mr. Judd, who was president of the appellant society at the time of the trial, testified that this was the amount of the last assessment preceding Mrs. Fox's death, and there is no other testimony on that subject. The by-laws fix the limit of there is no proof that this was the effect of the by-laws at the time Mrs. Fox's certificate was in force, but we think the testimony of Judd on that subject is undisputed, and shows that there was always a bylaw to that effect. The amount named above being the limit of appellee's right of recovery according to the undisputed evidence, the judgment will be reversed, and judgment will be entered here for the amount of $124.40 as of the date of the judgment below. It is so ordered. NOTE. The question of the power of a mutual benefit society to waive restrictions upon eligibility to membership is treated in the annotation following UNITED ORDER, G. S. v. MEEKINS, post, 93. Specifically, as to restrictions imposed by by-laws, see subd. III. of that annotation. 1. A mutual benefit society cannot waive a provision of its by-laws which follows a statutory requirement that certificates issued to members joining the order after they have reached a specified age shall be void. [See note on this question beginning on page 93.] APPEAL by defendant from a judgment of the Circuit Court for Clark County (Haynie, J.) in favor of plaintiff in an action brought to recover the amount alleged to be due on a benefit certificate. Reversed. Statement by Hart, J.: Lillian Meekins sued the United Order of Good Samaritans to recover $300, alleged to be due her upon a benefit certificate issued by it upon the life of Luke Jefferson. It appears from the record that A. A. McElroy was present on the 16th day of August, 1920, when the local lodge of the United Order of Good Samaritans was organized at Arkadelphia, Arkansas. Since that that time, McElroy has been what he calls president or colonial chancellor of said lodge. The lodge holds regular meetings, and is a secret order. It has a book containing its by-laws and the rules of the Supreme Colony of the United Order of Good Samaritans. The by-laws and rules of the order were introduced in evidence, and provide that no person shall be received as a member of the order above the age of sixty years. Grant Reed was present at the time the local order at Arkadelphia was organized by W. R. Cox, a deputy of the Grand Lodge. Reed has been treasurer of the local lodge since it was organized. Cox solicited people to join who were over sixty years of age, and told them that this did not make any difference, as long as their health was good. Luke Jefferson was initiated on the night the lodge was organized, and was told by Cox that it did. not make any difference that he was over sixty years of age. The members pay a certain stipulated sum as dues each month, and a certain per cent of the amount so collected is sent to the Grand Lodge. Luke Jefferson paid his dues regularly until his death, which occurred on the 17th day of March, 1921. The benefit certificate issued upon his life. was for the sum of $300, and was payable to Lillian Meekins, a daughter of Luke Jefferson. Evidence was introduced on the part of the defendant to show that Luke Jefferson was over sixty years of age at the time he was initiated in the lodge; and, on the other hand, evidence was introduced by the plaintiff to show that Luke Jefferson was under sixty years of age at the time he joined the lodge. Evidence was also introduced by the defendant to show that it paid the plaintiff the sum of $75 as a payment in full of any amount which might be due on the beneficiary certificate sued on. The plaintiff admitted receiving this sum, but stated that it was a voluntary gift on the part of the defendant. The jury returned a verdict in favor of the plaintiff, and the defendant has appealed. Messrs. Callaway & Callaway, for appellant: The section of the statute in question is mandatory, and, therefore, any act by a deputy of the grand lodge attempting to waive it was illegal, ultra vires, and did not bind the order. Nixon v. Grace, 98 Ark. 505, 136 S. W. 670; Wiley v. Flournoy, 30 Ark. 609; Fraternal Tribunes v. Steele, 114 Ill. App. 194, affirmed in 215 Ill. 190, 106 Am. St. Rep. 160, 74 N. E. 121; McCann v. Ladies of Maccabees, 182 Ill. App. 319; Tuite v. Supreme Forest, W. C. 193 Mo. App. 619, 187 S. W. 137; Haner v. Grand Lodge, A. O. U. W. 102 Neb. 563, 168 N. W. 189. Messrs. McMillan & McMillan, for appellee: It was defendant's duty to prove that it was a fraternal benefit society. Home Protective Asso. v. Morse, 143 Ark. 184, 222 S. W. 364; United Assur. Asso. v. Frederick, 130 Ark. 12, 195 S. W. 691. The benefit certificate does not comply with § 6076 of the statute. Andrus v. Business Men's Acci. Asso. 283 Mo. 442, 13 A.L.R. 779, 223 S. W. 70; Tuite v. Supreme Forest, W. C. 193 Mo. App. 619, 187 S. W. 137. Defendant cannot now say the contract is ultra vires. North American Union v. Johnson, 142 Ark. 378, 219 S. W. 769; Arkadelphia Lumber Co. v. Posey, 74 Ark. 377, 85 S. W. 1127; Minneapolis F. & M. Mut. Ins. Co. v. Norman, 74 Ark. 191, 109 Am. St. Rep. 74, 85 S. W. 229, (155 Ark. 407, 244 S. W. 439.) 4 Ann. Cas. 1045; Arkansas & L. R. Co. v. Stroude, 77 Ark. 109, 113 Am. St. Rep. 130, 91 S. W. 18; Richeson v. National Bank, 96 Ark. 595, 132 S. W. 913; Linkauf v. Lombard, 137 N. Y. 417, 20 L.R.A. 48, 33 Am. St. Rep. 743, 33 N. E. 472; Bath Gaslight Co. v. Claffy, 151 N. Y. 24, 36 L.R.A. 664, 45 N. E. 390. Hart, J., delivered the opinion of the court: Counsel for defendant assign as error the refusal of the court to instruct the jury that, if Luke Jefferson was over sixty years of age at the time he was initiated in the local lodge of the defendant, the plain tiff was not entitled to recover. We think the court erred in refusing to give the instruction. The rules of the order provide that no person shall be received as a member of the order above the age of sixty years, and that failure to comply with this rule renders the contract null and void. Our statute prescribing the qualifications for membership in fraternal benefit societies provides that any such society may admit to membership any person not less than sixteen and not more than sixty years of age. Crawford & M. Dig. § 6075. It will be observed that the by-laws follow the statute in fixing the age limit for membership in the order. It is the contention of the plaintiff that the receipt and retention by the defendant of the dues of the deceased with knowledge that he was over sixty years of age at the time he was initiated in the lodge at Arkadelphia operates as a waiver of the right to forfeit the benefit certificate. Counsel contend that a corporation cannot avail itself of the defense of ultra vires when the contract has been performed in good faith by the other party and the corporation has had the full benefit of such performance. In support of this claim various decisions heretofore rendered by this court are referred to and relied upon. We need not review these decisions; for they are not applicable in cases where re Insurance contracts are prohibited by statute. of age. The general rule is that if a statute prohibits a corporation from making a contract of a certain kind, the contract is void, contract-proeven though not ex- hibited by stat pressly declared to ute-validity. Corporation a private corpora- ultra vires- prohibition. The by statute, or where their enforcement would be against public policy on account of being immoral. reason given is that the powers delegated by the state to corporations are matters of public law of which no one can plead ignorance. Steele v. Fraternal Tribunes, 215 Ill. 190, 106 Am. St. Rep. 160, 74 N. E. 121. In Haner v. Grand Lodge, A. O. U. W. 102 Neb. 563, 168 N. W. 189, the supreme court of Nebraska said that the general rule seems to be that a fraternal society may waive its own rules and by-laws, but it cannot waive the provisions of a statute made for its government. See also Tuite v. Supreme Forest, W. C. 193 Mo. App. 619, 187 S. W. 137. The principle is also recognized in White v. Commercial & F. Bank, 66 S. C. 491, 97 Am. St. Rep. 803, 45 S. E. 94, where it was held that contracts ultra vires cannot be made the foundation for the liability of a corporation, nor can a corporation be made liable on a contract which the law prohibits it from entering into. It was said that in such cases the court will not lend its aid in the enforcement of rights growing out of a contract expressly forbidden by a statute, but will leave the parties to the unlawful contract where it finds them. So, too, in Mutual Guaranty F. Ins. Co. v. Barker, 107 Iowa, 143, 70 Am. St. Rep. 149, 77 N. W. 868, the supreme court of Iowa held that, where a mutual insurance company issues a policy which it is prohibited by law to issue, the policy is illegal and void, and the fact that premiums have been paid thereon and used by the company will not estop it from pleading ultra vires to a suit on the policy. Fraternal benefit societies do not have a capital stock, and are organized and carried on solely for the mutual benefit of their members. Our statute regulating such societies was manifestly enacted to protect the members, who are incapable of protecting themselves. It is well known that in such societies the officers make the rules and by-laws, and that the members have practically no voice in the management of the affairs of the order. The legislature having thus intended to restrict the age limit of the members of such societies for the purpose of protecting the members, the courts are bound to carry out the statute and to see that it is not violated. Otherwise the officers of such societies by a course of conduct could abrogate a statute, and thus do indirectly what the statute prohibits them from doing directly. But it is insisted that the defendant has failed to show that it was a fraternal benefit society within the meaning of the statute. We cannot agree with counsel in this contention. Section 6068 of Crawford & Moses' Digest contains a definition of fraternal benefit societies. It provides that any corporation, society, etc., without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and having a lodge system with ritualistic form of work and representative form of government, etc., is declared to be a fraternal benefit society. Section 6069 provides that any society having a supreme governing body and subordinate lodges into which members shall be initiated and admitted in accordance with its constitution, laws, and prescribed ritualistic ceremonies, which subordinate lodges shall be required to hold regular meetings at least once in each month, shall be deemed to be operating on the lodge system. It is fairly inferable from the benefit certificate sued on and from the testimony of the treasurer and the head officer of the local lodge that the defendant is a fraternal benefit society within the meaning of the statute. The benefit certificate recites that it was issued by the Supreme Lodge, and that Luke Jefferson was a member of the subordinate lodge at Arkadelphia. It also recites that his daughter is the beneficiary, and that the insured agrees to be governed by the constitution and by-laws of the Supreme Colony, and to pay the local colony the requisite amounts to maintain membership in the society. It is fairly inferable from the testimony of the officers of the local lodge that it had a ritualistic form of work. They testify that it was a secret order, and that it had regular meetings. It is also shown that the dues were paid monthly, and that part of the dues was kept by the local lodge, and that a part of them was sent to the supreme governing body. Therefore it is inferable from absence of proof the evidence that effect of the defendant is a fraternal benefit society within the meaning of the statute. Evidence inference. It follows from the views we have expressed that the court erred in not instructing the jury that, if it should find from the evidence that Luke Jefferson was over sixty years (155 Ark. 407, 244 S. W. 439.) of age at the time he became a member of the order, it should find for the defendant. Therefore the judgment will be reversed, and the cause remanded for a new trial. ANNOTATION. Power of mutual benefit society to waive restrictions upon eligibility to membership. I. Statutory and charter restrictions, 93. II. Constitutional restrictions, 94. III. By-laws, 95. 1. Statutory and charter restrictions. It seems clear that as a general rule a mutual benefit society has no power to waive statutory or charter restrictions upon eligibility to membership therein. Arkansas. UNITED ORDER, G. S. v. MEEKINS (reported herewith) ante, 89. Illinois. Fraternal Tribunes v. Steele (1904) 114 Ill. App. 194, affirmed in (1905) 215 Ill. 190, 106 Am. St. Rep. 160, 74 N. E. 121; Beggs v. Supreme Council, C. K. L. A. (1909) 146 Ill. App. 168; Sowersby v. Royal League (1911) 159 Ill. App. 626; Sherry v. Women's Catholic Order of Foresters (1911) 166 Ill. App. 254; Gilmore v. Modern Protective Asso. (1912) 171 Ill. App. 525; McCann v. Ladies of Maccabees (1913) 182 Ill. App. 319; Alexander v. Bankers' Union (1914) 187 Ill. App. 469; Kresin v. Brotherhood of American Yeomen (1920) 217 Ill. App. 448. Indiana. — Gray v. National Ben. Asso. (1887) 111 Ind. 531, 11 N. E. 477. Iowa. See Delaney v. Modern Acci. Club (1903) 121 Iowa, 528, 63 L.R.A. 603, 97 N. W. 91, and Krause v. Mod. ern Woodmen (1907) 133 Iowa, 199, 110 N. W. 452. Council, C. B. L. (1904) 95 App. Div. 142, 88 N. Y. Supp. 822, affirmed without opinion in (1909) 194 N. Y. 577, 88 N. E. 1125. Ohio. See State ex rel. Richards v. Manufacturers' Mut. Fire Asso. (1893) 50 Ohio St. 145, 24 L.R.A. 252, 33 N. E. 401. Another statement of the rule sometimes made is that the action of the society or association is void, and the person never becomes a member, so that there can be no question of right of forfeiture in consequence of which no question of waiver can arise. Fraternal Tribunes v. Steele (Ill.) supra; Alexander v. Bankers' Union (1914) 187 Ill. App. 469. Thus, it has been held that a mutual benefit society cannot admit to membership an applicant who is not within the age limits set by a statute governing such societies. McCann V. Ladies of Maccabees (1913) 182 Ill. App. 319; Alexander V. Bankers' Union (Ill.) and Brenner v. Kansas Mut. Life Asso. (Kan.) supra. And see Re Globe Mut. Ben. Asso. (1892) 135 N. Y. 280, 17 L.R.A. 547, 32 N. E. 122, wherein it was held that infants were impliedly excluded from membership by the statutes of the state. And in Haner v. Grand Lodge, A. O. U. W. (Neb.) supra, it was held that a fraternal benefit society could not waive the provisions of a statute under which it was organized to the effect that to be eligible to benefits one must be physically disabled, and not be under seventy years of age. Nor can a mutual benefit society waive a charter restriction as to the ages of applicants for membership. Fraternal Tribunes v. Steele (Ill.) supra; Beggs v. Supreme Council, C. K. L. A. (1909) 146 Ill. App. 168; Sowersby v. Royal League (1911) 159 Ill. |