People Ex Rel. Bartlett v. Medical Society of Erie , 32 N.Y. 187 ( 1865 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The relator was a practicing physician in the county of Erie. He had received a thorough medical education, and, in virtue of his diploma from the New York Medical College, was entitled to practice, in any part of the State, the profession to which he had dedicated his life. The statute imposed on the president of the county medical society the duty of notifying him to apply for admission. For some cause, not disclosed in the papers, that duty had not been discharged; though, at the time the present proceeding was instituted, the relator had been in active and successful practice, in the city of Buffalo, for a period of about seven years. In June, 1859, he made application for admission, and proposed to comply with the conditions of membership, and to subscribe to the conventional rules and regulations adopted by the society for the government of its members. His diploma was presumptive evidence of his professional qualifications; and, so far as the case discloses, his private character was irreproachable. Upon these facts, his legal right was clear. He claimed the franchise of a corporator, to which he was in law entitled, unless excluded by the operation of some valid regulation or by-law of that particular society. (ThePeople v. The Medical Society of Erie, 24 Barb., 570, 577.) The only qualifications for admission, required by the by-laws, were: that the applicant should be a "physician or surgeon, residing in the county of Erie, of temperate habits, good moral character, and legally authorized to practice physic or surgery in this State." (By-laws, art. 5, sec. 1.) That he possessed these qualifications was not denied. The sole ground on which his application was rejected, was that, at an antecedent period, he had not observed certain conventional regulations, which this society had borrowed for the government of its members from the American Medical Association, entitled "Code of Medical Ethics." One of the by-laws provides, that this code "shall be, and hereby is adopted by this society, and shall be scrupulously adhered to by each and every member thereof; and any departure from the true spirit and meaning of said code of ethics shall subject every such member to the discipline of this society." (By-laws, art. 7, sec. 9.)

The regulations embodied in the so-called code are admirably framed, and commend themselves to every reader, as tending to raise to a still higher elevation, the character of the learned and honorable profession to which they were submitted for approval and adoption. They are not limited in their scope to the range of moral obligation, but embrace express rules of conduct, in personal, professional and public relations. They are regulations in the various departments of morals and manners, of courtesy and etiquette, of delicacy and honor. They bind those who pledge themselves to their observance, but cannot be recognized in law, as conditions precedent to the exercise of an honorable profession, by learned, able, and upright men, who have not agreed to abide by them. The non-observance of such regulations may be made cause for exclusion or disfranchisement; but it must be either by the agreement of parties or by the exercise of the law-making power.

The applicant was not a member either of the American Medical Association or of the Erie County Medical Society, at the time of his alleged deviation from the formula prescribed by these conventional rules. He was under no legal obligation to observe them, and had neither actual nor constructive notice of their existence. Those who were members of the society, could not lawfully be expelled for antecedent deviation from the code. (Fawcett v. Charles, 10 Wend., 477.) Much less could such deviation be alleged, as cause for exclusion, against one who never agreed to be bound by it, and as to whom it was not merely an inoperative but an unknown law.

As the relator demanded admission to the enjoyment of a franchise to which he was presumptively entitled, his exclusion could be justified only by facts repelling the presumption that he was duly qualified for admission, or by extraneous facts, showing that, if his application was granted, there were then subsisting causes, making "a clear case," for immediate expulsion. (Ex parte Paine, 1 Hill, 665.)

The burden was upon the appellant to establish, affirmatively, the existence of such present cause for expulsion. The society waived the right of making a return and taking a formal issue on the claim of the relator, to be determined as matter of fact by a jury, under the direction of the court; but submitted its objections in the form of affidavits, which failed to establish cause either for exclusion or expulsion.

The only specific fact alleged in the opposing affidavits, as ground of objection, was the publication by the relator of a professional advertisement, which was inserted in one or more of the Buffalo journals in May, 1855, and discontinued in January, 1857, more than two years before his application was presented. It is charged that the printing of this notice was an act of empiricism, and in conflict with the code of ethics adopted by the Erie County Medical Society.

There is nothing in the terms of the advertisement from which any inference can justly be drawn against the relator, in respect either to his personal character or his professional skill. There is no suggestion, in the affidavits, that any of the statements of fact contained in the notice are untrue, and there is nothing in its contents inconsistent with perfect good faith on the part of the relator. It refers to the treatment of bronchitis, asthma and consumption, as a special department of the profession to which he had directed his particular attention; and it alludes to his use of the method recently introduced, of medicated inhalation, through an instrument appropriate to that purpose, in aid of such general treatment as experience had proved to be beneficial in that class of diseases. It is not denied that the relator possessed peculiar skill in this department of the profession; and the case discloses the fact that the method of auxiliary treatment, introduced by him in the county of Erie, was not only successful in his own practice, but was adopted, with beneficial results, by members of the county society, of high professional standing, and that it was accepted by a large proportion of the physicians of western New York.

If, at the time this remedy was introduced, he had been a member of the county society, or of the American Medical Association, he would not have been at liberty to direct attention, through the medium of the public journals, to the benefits resulting from its use. This would, perhaps, have been unfortunate for those who were suffering, in that vicinity, from this particular class of diseases; but it is undoubtedly true, that the suppression of such an advertisement would have been more considerate toward his professional brethren, and more in accordance with the rules of delicacy and good taste. But an error in this respect, by one who had no notice of the society regulation, is not cause for disfranchisement. The act of the relator was neither immoral nor illegal. It was no violation of the by-laws; for, as to him, they were wholly inoperative. It was no present cause for exclusion; for the publication of the objectionable notice had been discontinued for more than two years. When he applied for admission, he proposed to become bound by the by-laws; and this the society refused to permit, for the sole cause that he had not observed them before they became rules of conduct for him. "Where there is no law, there is no transgression." The relator, therefore, had been guilty of no legal wrong which could bar his claim to the franchise.

We entertain no doubt that the county societies may still exercise the common law power of expulsion, notwithstanding the remedy provided by statute, which we regard as merely cumulative. But they can exercise this jurisdiction only in case of offenses recognized by the common law as cause for expulsion. Of these there are but three; as Lord MANSFIELD held, in the case of TheKing v. The Mayor of Liverpool: 1. Violation of duty to the society, as a member of the corporation. 2. Offenses as acitizen against the laws of the country. 3. Breach of duty, in respect alike to the corporation and the laws. (2 Burr., 732.) Neither of these causes of exclusion existed against the relator; and if he had been admitted to membership, he would not have been subject to expulsion for the supposed antecedent offense, by a vote of the majority of the members, under the seventh and eighth articles of the by-laws.

No cause existed for his expulsion and disfranchisement, under the provisions of the general statutes. To subject him to a penalty so harsh and severe, he must have been presented on formal charges, by a two-third vote of the society, and convicted by the county court "of gross ignorance or misconduct in his profession, or of immoral conduct or habits." (1 R.S., 452.)

It is urged with great force and variety of illustration, in the able argument submitted in behalf of the society, that the code of ethics incorporated in its by-laws is retroactive in its operation, and furnishes an absolute rule of conduct, by which every physician is bound from the time he enters upon the practice of his profession, whether he was or was not a member of the associations by which it was adopted as a standard of professional conduct. In this view we cannot concur. The clause of the medical code on which the appellant mainly relies to justify the exclusion of the relator, is in these words: "It is derogatory to the dignity of the profession to resort to public advertisements, or private cards, or handbills, inviting the attention of individuals affected with particular diseases, * * to boast of cures and remedies, to adduce certificates of skill and success, or to perform any similar act. These are the ordinary practices of empirics, and are highly reprehensible in a regular physician." (Art. 1, sec. 3.)

This canon of the code adopted by the society, expresses the judgment of those who framed it; but it has the force, neither of a general law, nor of a rule of private morality. Those who assume the obligation are bound by it; but none beside. Neither the general statute, nor the by-laws of the society, make theantecedent observance of this regulation a condition of membership.

We entertain no doubt that the society would have arrived at the same conclusion, if the form of the proceeding had been such as to give the relator an opportunity to be heard. Of the committee of five, to whom his application for admission was referred, four, after a personal conference with the candidate, united in recommending his admission. The by-laws prohibited the appearance of the applicant before the society prior to admission. Seventeen members were present when the vote was taken on the adoption of the report. Six votes were cast in his favor, and three against him, the other members not voting. When the application was renewed, in January, 1862, a motion was made to lay it on the table at once; the effect of which was, under the by-laws, to cut off all debate. (By-laws, art. 4, sec. 9.) The motion prevailed by the vote of a majority of the members.

This division of opinion among the gentlemen composing the society, has cast upon the courts the duty of passing judgment on the legal right of the relator. We think no cause existed which, in law, would justify his exclusion.

When a party, having a clear presumptive title, applies to be admitted to the exercise of a corporate franchise, the application should not be denied, unless the right of immediate expulsion be plain and unquestioned. The general policy of the law is opposed to sharp and summary judgment, where the party whose rights are in jeopardy has no opportunity to be heard in his own defense. (Bagg's Case, 11 Coke, 99.)

The relator was entitled to admission, and the order of the Supreme Court should be affirmed.

All the judges concurring, the order was affirmed, with costs.