Ellis v. N. C. Institution for the Deaf & Dumb & the Blind , 68 N.C. 423 ( 1873 )

Boyden, J.

There are several questions raised in this case, but as ’one point is so clearly against the plaintiff’s right to maintain this action, we deem it unnecessary to notice any other. ,

The case agreed states that the plaintiff was elected steward and physician by the board of directors regularly in office in the Institution, for one year, and before his term of office had expired for which he had been elected, he was removed and displaced by the new board who were appointed by the Legislature, under the act of Assembly passed the 21st day of January, 1871, Acts of 1870-71, chap. 85.

The law creating this corporation authorized the making of by-laws for the government of the Institution, and the . board of directors had, in pursuance of the law, enacted various by-laws, and among others there was one which prescribed that any officer elected might be removed by a certain vote of a majority of the board. It is agreed that the steward was an officer of the Institution, and that he had been displaced or removed by the unanimous vote of the board of directors, at a regular meeting of the board of directors in office under the above recited act of the Legislature ; that the plaintiff had been notified of his displacement, and in compliance with a notice to that effect the plaintiff turned over to his successor, as steward, all the property belonging to said office. But the plaintiff was willing, the case states, to continue in his office of steward and physician, but signified no such willingness to said board of directors. That no cause was assigned to the plaintiff for his removal. This raises the question, we think, which must determine the plaintiff’s right in this case.

It is argued, with much earnestness, First, that the board of directors appointed by the Legislature were mere intruders into these offices, and were not even officers defacto, as they were in without any color of title to the office; and, secondly, that if they were officers de facto, the plaintiff was not subject to be removed by any action under this by-law, unless he had been notified thereof at the time he accepted the office, and that even then he could not be removed without a sufficient reason being assigned for his removal.

We think the counsel for the plaintiff is mistaken in the positions above recited. First the board were in, under the color of an act of the Legislature and the former board had. peaceably surrendered their positions in the board to those directors, and under the law as they supposed, they were exercising and discharging all the duties devolved upon such officers. This we hold constituted them officers defacto, and as has been decided at this term they are not officers de jure. And -we hold that acts of this defacto board in the discharge of the ordinary duties of the board, are to have the same force and effect as if made by a regular legal board. So, as we regard the law, the only question for us to decide is,, whether the plaintiff, when he accepted this appointment and entered upon, the discharge of his duties as an officer of the board, was bound by the by-laws of the institution in force at that time, without being specially notified therof. Upon this question the Court entertains no doubt, that every officer elected and inducted in office is bound to take notice of the by-laws and govern himself accordingly ; so that the plaintiff having been elected as stewart and physician of this institution when this by-law ivas in force, he is just, as much bound thereby, as if it had been expressly stipulated, that, he was to hold said office for the term of one year, unless he should be displaced by a vote of the board, five of the directors voting for his removal.

This disposes of the plaintiff’s case. But we cannot permit this occasion to pass, without remarking that we deem this by-law, not only proper and reasonable, but absolutely indispensable, and we cannot see how such an institution could be managed at all, without the power to remove a disagreeable or objectionable stewart and physician. Should it be manifest that his services as a physician were injuring instead of benefiting the patients; must he still continue to prescribe for the pupils until the close of the year ? Should he furnish unwholesome provisions, must the pupils in the institution eat them or starve ? Should he conduct in such. •a manner as to render the pupils dissatisfied or disobedient; must such conduct he borne until' the close of the year ? Surely not.

These remarks are general and have no reference to the plaintiff. There are a thousand ways, by which a steward and physician might thwart and destroy the influence of the teachers over their pupils which might be difficult of proof although the directors might he fully satisfied of their existence. So that to require a sufficient reason on the removal -©f such officers to be assigned, would be almost equivalent to having no right of removal at all.

There is error.

Pee Curiam.

Judgment reversed.