State ex rel. Waring v. Georgia Medical Society , 38 Ga. 608 ( 1869 )

Brown, C. J.

1. It was insisted, in this ease, that the Georgia Medical Society was in existence long before it was incorporated, and that its objects were in no way changed by its application for and acceptance of its present charter from the State. This may be very true, but its legal responsibilities were changed by the acceptance of the charter. While it remained a voluntary society, the courts had no jurisdiction over it, if it violated no law of the State, and its members had no property in their membership which the law could protect.- But its acceptance of the charter subjected it to the supervision of the proper legal authorities having jurisdiction in such cases: 4 Wheat., 674-5; 6 Conn., 544-5.

2. When the voluntary society accepted the charter, it became a private, civil corporation, and the corporators, then in being, acquired a property in the franchise, and every person who has since become a corporator has acquired a like property. The property which the corporator acquires is not visible, tangible property; but it is none the less property, because it is invisible and intangible. It is not -a corporeal hereditament; but it is incorporeal. Blackstone, in his Commentaries, volume 2, page 21, says: That incorporeal hereditaments are divided into ten sorts; one of these consists of franchises. Bouvier, in his Law Dictionary, volume 1, page 593, says the word franchise has several meanings, one of which he gives as follows: “ It is a certain privilege conferred by grant from the government and vested in individuals. Corporations or bodies politic are the most usual franchise known to our law.” The law books are full of the doctrine that persons may have a property in incorporeal hereditaments, franchises, etc.

Property, says Bouvier, volume 2, page 381, is divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandize and the like; the latter consists in legal rights as dioses in action, easements and the like, Blackstone says, volume 2, page 37, it is likewise a franchise for a number of persons to be incorporated and subsist as a body politic, with power to maintain perpetual succession, and to do other corporate acts, and each individual member of such corporation is also said to have a franchise or freedom. We think it well settled by these and other authorities, that a corporator in a private, civil corporation, has a property in the franchise, of which he can not be deprived without due process of law.

3. It was insisted by the learned counsel for the plaintiff in error, that the ninth by-law of this corporation, is unauthorized by the charter, and that the corporation is not justifiable in-expelling a member for its violation, that to deprive a corporator of his property in the franchise under it, is to deprive him of his property without due process of law. We think the ninth by-law a proper one in view of the objects of the society, and we hold that the charter conferred upon the corporation the power to ordain and establish it, and that they have the power to expel a member when a proper case arises under it.

But we hold that the society has not an uncontrollable- discretion in its construction and enforcement. They cannot, under pretext of enforcing this rule, take personal or private revenge, or make it the instrument of religious intolerance, or political proscription. When a member feels that he is aggrieved or injured by the illegal or oppressive action of the body, it is his right to appeal to the Courts for redress and protection; and it is the right and duty of the Court to investigate such charges, when properly before it, and to judge of the legality of the action of the society in expelling a member or depriving him of any other legal right.

4. The rule of law on this subject is thus-stated by Judge Blackstone, volume 1, page 381. The king being thus constited by law, visitor of all civil corporations, the law has also appointed the place where he shall exercise this jurisdiction, which is the Court of King’s Bench, where, and where only, all misbehaviors of this kind of corporations, are inquired into and redressed, and all their controversies decided. In this State the same visitorial power of correcting the misbehaviors of these corporations, and deciding their controversies, is vested in the Superior Courts of the counties where they are located, which, in England, belongs to the King’s Bench. See 5 John. Ch. R., 335.

It was contended, with much zeal and ability, by the able counsel for the defendant in error, that mandamus is not the proper remedy, even if we admit that the rights of Dr. Waring have been infringed, or that he has been deprived of them by the illegal action of the society. The rule, as laid down by this Court in a number of cases, is that a person having a clear legal right under the laws of this State, is entitled to the writ of mandamus, if he has no other remedy to enforce it: 4 Ga., 26 and 116; 12 Ga., 170; 26 Ga., 665.

But it is insisted that the Code, section 3143, has changed this rule, and that mandamus does not now lie as a private remedy between individuals to enforce private rights. We do not think this section of the Code was intended to deny the writ to the corporator, who is deprived of this rights by the corporation, when he has no other adequate remedy, for their enforcement. A corporation having been created, invested with certain powers, and charged with certain duties to be performed for the benefit of the public, is not a private individual, in the sense of the word as used in said section of the Code, and a corporator whose rights are withheld or violated by the corporation, who is without other remedy, is entitled to the writ.

In the Commonwealth ex rel., etc., vs. The Mayor of Lancaster, 5 Watts, 152, Gibson, C. J., says: “An action to enforce the right could not be maintained against the corporation because performance of a corporate function is not a duty to be demanded by action; and unless recourse could be had to the functionary in the first instance, the relator might have a cause for redress without a remedy.” See 4 Ga., 44.

Here the discharge of a corporate duty' is treated as an office or function, and the corporation as a functionary. In this sense, no doubt, the legislature, in the adoption of the Code, intended to treat them.

The object of this society, as cited in their charter, was “ for the purpose of lessening the fatality induced by climate and incidental causes, and improving the science of medicine.” The whole community have an interest in the success of this laudable undertaking; and if the functions conferred by the charter, for the benefit of the public, are not faithfully performed, and one of the corporators, who has no other adequate redress, is injured by the conduct of the corporation (the functionary,) the Courts will grant him relief by mandamus.

6. The record in this case shows no sufficient cause to justify the society in expelling Dr. Waring from his rights and privileges as a corporator. He was expelled for doing that which the law of this State not only authorizes but encourages. His offending consists in the fact that he became one of the sureties on the official bond of a colored citizen of his county, who had been elected Clerk of the Superior Court of the county, by a majority of the legal votes cast at the election for that office, and in the further fact that he became surety on the bonds of certain other colored citizens who were charged with the offence of riot, for their appearance at Court to answer the charge as the law directs. The very fact that the law requires the Clerk of the Superior Court to give bond and security- for the faithful discharge of his duties, is sufficient to justify any citizen of the county in becoming one of his sureties, and to protect him in contemplation of law, from the imputation of having forfeited his position as a gentleman by so doing.

Again, it is not the object of law to punish citizens of this State, whether white or black, by imprisonment, for offences of which they have never been convicted. When they are charged with violations of the Penal Code, the requirement of the law is, that they appear at the proper time and place, and answer the charge; and to secure such appearance, they are required to give bond and security, and it is only on failure to give the bond, that they can be imprisoned. As innocent persons are often confined in prison under charges, because of their inability to give bond, the law favors bail whenever the offense is, by law, bailable. And the law favors this even in the case of the guilty, till the trial. This is not only best for the public, as it saves the tax-payers the expense of keeping them in jail, but it is just to the accused, who receive the legal punishment for their crimes, if guilty, under the sentence of the Court after legal conviction. How then does a citizen forfeit his corporate rights as a member of a civil corporation, or his position as a gentleman, by doing an act that is not only encouraged, by the laws of his State, but is a positive public benefit ?

But it is said Dr. Waring was not expelled for becoming surety on the bonds above mentioned, but for ungentlemanly conduct in the presence of the society. ■ What ungentlemanly conduct ? The ninth by-law requires that “specific charges ” be set forth and handed to the accused at least one month before the society takes action thereon. What specific charges of ungentlemanly conduct in presence of the society, were ever handed to Dr. Waring?' What did he say or do in presence of the society, to forfeit his position as a gentleman? The record is silent. That silence is significant. That which is material and is not averred by the society in their answer is presumed not to exist. Ho ungentlemanly conduct in presence of the society is set forth in their response, and this Court must presume none existed.

Dr. Waring was convicted of the charges first mentioned, in reference to the suretyship, and brought formally before the society, and censured. To this illegal and unauthorized proceeding he submitted. But, not satisfied with this, at the next meeting of the society, he was again brought up, and his resignation demanded, and he was given till the succeeding meeting to comply with the imperious and unauthorized demand.- This he declined to do. And a preamble and resolutions were then passed, setting a future day when the society would vote on his expulsion for refusing to resign, and for discourteous behavior towards the society at two former meetings. In what the discourteous behavior consisted we are not informed by the record. In the meantime, however, the gracious privilege of avoiding expulsion by resignation was still held out to Dr. Waring. When the time came for the much cherished object, by the infliction of the extreme penalty of expulsion, Dr. Waring was at home, sick, and unable to attend'; but he wrote the society, disclaiming all intentional discourtesy to it or its members; and protested against the irregularity and illegality of the course resolved upon, as set forth in said preamble and resolutions. But all to no effect. His expulsion was pre-determined, and that determination was executed. A more illegal or unjustifiable proceeding lias seldom been brought before a Court.

After argument had, and a thorough examination of this case, it is the unanimous judgment of this Court, that the judgment of the Court below be reversed, and the Judge of the Superior Courts of said county is hereby instructed and ordered to grant a peremptory mandamus, commanding and compelling the said “The Georgia Medical Society” to restore the said Dr. James J. Waring to all his rights and privileges as a corporator in said society.