Medical & Surgical Society of Montgomery County v. Weatherly

SOMERY1LLE, J.

This is an application for the writ of mandamus by the relator, Dr. J. S. Weatherly, a licensed and practicing physician, seeking to vacate certain proceedings of the Medical and Surgical Society of Montgomery County, a voluntary association incorporated under the laws of this State by whose corporate action he claims to have been irreguarly, and illegally deprived of his membership in said society, and excluded from its privileges.

We can entertain no doubt of the jurisdiction of the courts of this State to interfere, in all proper cases, by mandamus, as an appropriate remedy for the wrongful disfranchisement or amotion of a corporator, and to restore him to the enjoyment of a franchise of which lie lias been illegally deprived. This right of supervision over bodies corporate is one of great antiquity in our law, and is regarded as derived from the visitatorial power, always impliedly reserved by the Sovereign or the State in granting corporate charters, and which is exercised through the courts of common law jurisdiction. — High on Extr. Bern.. §§ 291, 293. The modern and better view is, that this right of judicial visitation is not confined to public corporations, but extends as well 'to those of a purely private nature. Nor is it limited to such as áre organized strictly for business purposes, or pecuniary profit, but is made applicable also to corporations formed for eleemosynary, religious, scientific, or other like purposes.—Angell & Ames’ Corp. § 704; State v. Milwaukee Cham. Commerce, 47 Wis. 670. The King, under our ancient law, was the legally constituted visitor of all corporations, whose franchises may have been granted to subjects by his grace and authority, a jurisdiction, which was exercised through the medium of the courts, and the chief function of which was “to-render their charters, or constitutions, ordinances and by-laws of perfect obligation, and generally to maintain their peace and good government.”—Angell & Ames’ Corp. (11th Ed.) § 684; 2 Kent, Com. 300. The just reason is that a corporate franchise is property, incorporeal, it is true, but' deemed none the less valuable in the eye of the law. Each individual member, as remarked by Sir William Blackstone, is said in such cases to be the owner of the franchise, and his privilege of membership, we may add on high authority, is, therefore, properly subject to the protection of the courts as valuable, although it may have no actual market value.—2 Black. Com. 37 ; State v. The Georgia Medical Society, 38 Ga. 608; Moses on Mandamus, p. 184; Dartmouth College v. Woodward, 4 Wheat. 518.

The purposes for which this jurisdiction is commonly exercised is left in no doubt by the authorities. In High, on Extraordinary Bemedies, $ 294, it is said to be now a well established rule, that mandamus will lie to restore to his corporate rights a member of a corporation who has been improperly disfranchised or irregularly removed from his. connection with the corporation. And while the court will not inquire into-the merits of the decision of corporate authorities in expelling or removing a corporator in the regular course of proceedings, yet, if the amotion has been conducted without due authority, the courts will interfere by mandamus to compel the restoration of the member to his corporate franchise.” The same rule is declared, in substance, in Angelí & Ames on Corporations (11th Ed.), § 695, where it is said that this jurisdiction will be exercised for compelling corporations generally “to observe the ordinances of their constitution, and to respect the rights of those entitled to participate in their privileges.” “If a cor-porator has been unjustly or irregularly amoved or suspended from his office, or disfranchised, the court,” it is added, “will grant mandamus to’restore him.” — lb. § 704. By a more recent writer, of respectable authority, the doctrine is stated as follows : “ A mandamus will issue in all cases to compel a corporation, or any particular officer, to perform any plain duty required by law in favor of a member or other interested party, whether such duty is imposed either by statute, charter, custom or contract.” — Woods’ Field on Corp. § 462. In the light of these authorities, and the numberless adjudged cases upon which they are predicated, and by winch they are fully sustained, we think the rule may be regarded as firmly established, that, in every case of the disfranchisement of a corpora-tor, the courts will entertain jurisdiction to restore him by mandamus, where the cause or ground of disfranchisement is legally insufficient, or where the proceedings by which it has been attempted are irregular, according to, or as tested by the charter or by-laws of the corporation. But no inquiry will be made into the merits of what has been regularly done by due course of proceeding.—Com. v. The German Society, 15 Penn. St. 251. The aim of the courts, as said by Mr. Justice Sergeant, in Commonwealth v. The Pike Beneficial Society, 8 Watts & Serg. 247, is to preserve corporate tribunals “in the line of order, and to correct abuses.”—High on Extr. Rem. §§“294, 297-304 ; Woods’ Field Corp. § 462; Angell & Ames’ Corp. (11th Ed.) § 704. The earnestness with which this particular subject of contention has been urged at the bar, on argument, has induced us to discuss it with greater elaboration than we might otherwise have indulged.

We need scarcely add that the jurisdiction under discussion is one which should never be rashly asserted, but always with due caution, and with a just regard for the rights of a majority of the corporators of any organized body or society, which may have expressed its will as to any matter jmder consideration, within the lawful scope of its charter, constitution, or bylaws.

The points of contention raised by the pleadings in this cause may be reduced to two simple inquiries :

(1) Whether the relator has, under the constitution of the medical and surgical society, of which he claims to be a member, forfeited his membership, ipso facto, by a failure to promptly pay his annual dues to the treasurer, without regard to corporate action by the society, or notice of such action to the relator.

(2) Whether the action of the society in declaring such forfeiture, or disfranchisement, is regular, as being in substantial compliance with the constitution or organic laws adopted for the government of its proceedings.

The several articles of the society’s constitution, which are pertinent to these inquiries are the following:

“ Sec. it, art. 8. Every member shall pay into the treasury an annual contribution of six dollars, which shall be due and payable on the first of January of each year; and if it be not paid by the first meeting in April of each year, the defaulter shall forfeit his membership, and Iris name shall be stricken from the roll of members; and of this he shall be duly notified by the secretary.”

Article 35 imposes upon the treasurer the duty of serving, on or about the beginning of March of each year, a written notice upon every member whose annual dues remain unpaid, calling his attention to the requirements of the foregoing article as to delinquents.

Article 15, section v, declares that “ the first regular meeting in April, of each year, shall be the regular meeting for the revision of the roll of members.” At this meeting the treasurer is required to report “ the names of all members whose dues for the year have not been paid,” and all such names, it is added, “ shalí be immediately stricken from the roll,” the treasurer being declared to be “ personally responsible to the society for the dues of all defaulting members not so reported.”

Article 36, section x, relating to the duties and office of treasurer, more fully prescribes the nature and purpose of this report, as follows:

“ Article 36. He shall report to the society, at the annual meeting for the revision of the roll, a written statement of the names of members who are in arrears for the dues of the year, so that they may be siriclten from the roll, and he shall himself be held personally responsible for the dues of all delinquents, whom he fails so to report; but this written statement shall not be spread upon the minutes.”

Article 59 provides in detail for the order of business, at what is designated as u the regular meeting for the revision of the roll,” specifying, among many others, “the treasurer’s report of members in arrears,” and “ the revision of the roll by the secretary.” Article 63 declares that any one of these orders of business may be “ suspended at any time by the vote of the majority of the members present at any meeting.”

There are no other articles of the society’s constitution which, in our opinion, materially affect the question under consideration. Those clauses relating to offenses and punish-mefats, constituting section xxi, very clearly embrace only malfeasance in office, and certain acts of unprofessional conduct, upon conviction of which, after formal charge and regular trial, the accused is liable to be reprimanded, suspended or expelled, at the pleasure of the society.- — Articles 47-49. They have no reference to the forfeiture- of membership for failure to pay dues. We need not, therefore, consider them in the construction of the articles under immediate consideration.

It is not denied that the relator, Weatherly, was in default by reason of his failure to malte punctual payment of his annual dues. It is true that, for this he offers an excuse, but with the sufficiency of this we have nothing to do, the merit or demerit of it being a matter within the peculiar cognizance of the society. Our. inquiry is confined to the mere legal construction of the foregoing provisions of the constitution imposed by this society upon itself for its own orderly government, and which must be taken as the law? of the case, so far-as they are violative of no rule of law or canon of reason. In this work of construction, however, there are certain cardinal rules of interpretation which must be constantly kept in mind. No principle, in the first place, is better settled, as a mere axiom of universal application, than that all penal laws and regulations must be strictly construed, especially when they are summary in their character, and operate to produce a forfeiture of valuable rights. “ The general policy of the law-,” moreover, as observed by a learned Justice, speaking for the New York Court of Appeals, in The People v. The Medical Society of the County of Erie, 32 N. Y. 187, “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.” This has been properly urged by counsel as a controlling and pivotal principle in the decision of this cause. It is applicable to ordinances of sovereign conventions, constitutions of government, Federal and State, the statute laws of all civil polities, whether republican or monarchical, the ordinances of municipalities, and to the by-laws and regulations of voluntary societies, whether incorporated or unincorporated.

It may be admitted, as argued by appellant’s counsel, that the constitution of the medical society, now under discussion, is in the nature of a contract between its members, and that they are bound by its provisions by reason of express assent in assuming the obligations of membership. It is equally binding, also, upon the society, as such, in its corporate capacity. White v. Brownell, 3 Abb. Pr. (N. Y.) 318, 327. So it may be admitted that it is competent for any member of such an association to bind himself- by agreement to forfeit his membership upon a specified condition, and that such forfeiture may be made to take effect at a time fixed, without special or personal notice to the party in default.—McDonald v. Ross-Lewin, 29 Hun (N. Y.), 87. A principle somewhat analogous, but far from identical, is settled in the case of mutual insurance companies, where, with few exceptions, the failure of the assured to make punctual payment of any premium due upon a policy held by him, may, by contract, be made to operate ijpso facto as a forfeiture of his entire interest and membership. Wheeler v. The Conn. Mut. Life Ins. Co., 82 N. Y. 543; Ala. Gold Life Ins. Co. v. Thomas, 74 Ala. 578. It is an important qualification, however, that no court will ordinarily adopt such a construction, unless the intention to waive notice may be inferred from uniform custom in the peculiar business, or is clearly expressed by the most unambiguous and explicit language. The question resolves itself, at last, into one of mere construction.

We have examined the constitution of this society with great care, that we might construe its various provisions in the light of those principles which must obviously govern us in arriving at a just and proper conclusion. Our opinion is, that it was never intended by the framers of this instrument, that the failure of a member to pay his annual dues should ipso facto operate as a forfeiture of his membership, but rather as a ground of forfeiture, in the nature of a judgment nisi, to be made final by the vote of the society. It is very true that the several articles of the constitution above set forth, exclusive of article 59, might well be construed tó have this operation, if they stood alone without more. They seem to declare very plainly that such defaulter shall forfeit his membership upon a proper report being made by the treasurer, at a designated" time, when his name shall be stricken by the secretary from the roll of members, and that he shall be duly notified of this fact.by the secretary. — Articles 8, 15 and 35.

But the constitution of this society is no exception to the rule, that all such instruments, including laws, ordinances and regulations of every kind, must be so coustrued as to gather the true resultant of intention from all of its various parts in pari materia. It is our opinion that article 59 was intended to devolve the consideration of this subject of forfeiture — operating as it does in the disfranchisement of members and the amotion of officers — upon the society as a body, in its corporate capacity. The treasurer, it must, bo observed, is required to officially report to the society “ a written statement of the names of members who are in arrears for the dues of the year, so that they may be stricken from the roll.” — Art. 36, Sec. x. These dues are payable on the first of January of each year, and if not paid by the first of April following, the member is in default. The time for ascertaining and verifying such default is, in our judgment, fixed by the constitution. It must be at a time not prior to the first meeting in April of each year, wliich is designated as “ the regular meeting for the revision of the roll of members.” — Articles 15 and 36. There are not less than ten separate “ orders of busmess ” designated for especial attention at this meeting. The fifth in order is the “ Treasurer’s Report of Members in Arrears,” and the sixth is the “ Revision of the Roll by the Secretary.” There are many of these orders of business which manifestly demand the action of the body of the society. This we must know from the commonest knowledge of the rules of parliamentary law, which are presumptively adopted for the orderly administration of business in every association, corporation or voluntary society. It is expressly declared in article 63 that the suspension of any of these orders must be by “ the vote of the majority of the members present at any meeting.” As the paramount purpose of this regular meeting is stated expressly to be for the revision of the roll of members, based on the treasurer’s report of members in arrears, it would be remarkable that so important an order of business should be transacted by the perfunctory action of a clerical officer without the indorsing voice of the society. Especially does this seem reasonable, in view of the fact, that such order can not be suspended without corporate action, and in view of the constitutional declaration, made elsewhere, that no member, who “ stands charged with unprofessional conduct, or with xmpaid dues,” shall have the privilege of resigning his membership. — Art. 9, Sec. iv. The law justly regards the substance of things and their legal effect — not mere shadows and similitudes. The necessary legal effect of revising a roll, by dropping a name from it, would, in this case, operate in the disfranchisement of a member, and the amotion of an officer. The rule of law is known to be, that this power resides generally in the body of every corporate society, that it is judicial in its nature, and must be exercised by a vote of the society expressing the corporate will, and ordinarily the records or minutes of the body must show that the requisite steps were taken in compliance with the charter and by-laws of the corporation, after reasonable notice to the party charged, either express or implied. — Woods’ Field Corp. § 55 ; Ang. & Ames’ Corp. § 420; High on Extr. Rem. § 295 ; People v. Amer. Institute, 44 How. Pr. (N. Y.) 468; State v. Georgia Med. Society, 38 Ga. 608 ; The People v. Mechanics' Aid Society, 22 Mich. 86 ; People v. Medical Society, 32 N. Y. 187; State v. Milwaukee Cham. Com., 47 Wis. 670. We have been cited by appellee’s counsel to several cases, somewhat analogous to the present one, in which the principles above stated have been adjudged applicable where the names of members have been stricken from the rolls of membership of various clubs and associations, for failure to punctually pay their dues in accordance with the provisions of their constitutions declaring membership forfeited for such reason.—State v. Carteret Club, 40 N. J. (Law) 295; Com. v. German Society, 15 Penn. St. 251 ; Delacy v. Neuse River Nav. Co., 1 Hawks (N. C.), 274., In the case last cited it was said by the court: “ It is a fundamental principle of our law, and recognized in every court of justice (and this corporation was a court when passing on the lights of its members), that no man can be condemned or prejudiced in his rights without an opportunity to be heard.”

These principles can not be ignored in construing the various articles of the constitution before us. They are rules of law, of parliamentary usage, of justice and common sense, designed for the impartial protection of all alike. So much are they favored by the law that they must be implied in all cases of doubt. And that which is necessarily implied is as much a part of a constitution, a statute or a by-law, as that which is expressed. — Ex parte The State of Alabama, 71 Ala. 371; Potter’s ,I)war. Stat. 145. The revision of the roll of mem-1 bers must, in our judgment, be the act of the society itself, transacted, as any other order of corporate business, by the recorded vote of the body in its corporate capacity, showing the fact that the roll was revised by at least a majority of the members present and constituting a quorum, voting in the affirmative. The secretary of the society, who is the custodian of the roll and all other books, papers and records of the society, except those belonging to the office of treasurer (Art. 27), is the mere instrument and amanuensis of that body for the accomplishment of the end in view, for which the “regular meeting for the revision of the roll” was specially convened by the organic law itself. It is not impossible that the treasurer may make a mistake in designating the names of those liable to disfranchisement as defaulters. Ilis memory may be at fault. He may have been guilty of the negligence of a clerical misprision. The fact of non-payment may be controverted, or the party in default may have some excuse, as to the merits of which he may desire to invoke the judgment of the society in waiver of his delinquency. These matters, we repeat, are subjects of investigation and determination by the corporation itself, whose exclusive privilege and prerogative it is to declare such forfeiture or disfranchisement.—State v. Gateret Club, 40 N. J. (Law) 295. The clerical work of revision is, in one sense, the act of the secretary, in as much as. the duty of striking off names and the preparation of a revised list are devolved upon him. But the corporate act of revision, which is a legal ratification of the act of the secretary, is an order of business judicial in its character, and of.great importance in its nature and results, and for these reasons, as we have said, must be transacted by the vote of the members in their corporate capacity. This conclusion is in perfect harmony with the settled analogies of law and rules of procedure governing corporate bodies, as we find them generally declared by the text writers, and enunciated by the courts in this country. It would require a clear case, free from all doubt, to induce us to depart from these respectable precedents.

We proceed next in order to consider the questions raised as to the regularity of corporate procedure. We are of opinion that, under the provisions of article 36 of the society’s constitution, the official report, required to be made by the treasurer, of all members who are delinquent in the payment of dues, is required to he made in writing, as a necessary basis for the action of the society. The language of the article is, that he “shall report to the society, at the annual meeting for the revision of the roll, a written statement oí the names of members who are in arrears for the dues of the year, so that they may be stricken from the roll.” We have said that this provision was penal, and must be strictly construed. It scarcely needs a strict construction, however, to authorize the conclusion, that such statement should not only be in writing, but in the form of an official report, authenticated by the signature of the treasurer. Such a report involves the statement of a fact in the nature of a charge, which .is sufficiently serious in nature to debar the delinquent of the privilege of resigning, and subjects him, if true, to the loss of valuable rights — to disfranchisement as-a member, and consequent amotion as an officer. There is, therefore, an idea of grave responsibility attached to such a report, which alone constitutes a sufficient reason for requiring it to be in writing — a form conveying also a suggestion of probable deliberation and verity. The fact that this statement is not permitted to bespread upon the minutes, is a strong reason why it should be in writing, as the only means of preserving a record or memorial of an important charge, upon which, as we have decided, a vote of the society is required to be taken. \Ve are not permitted to say that a verbal report, without minutes or record, will answer, when the constitution requires a report in writing. The case of The People v. American Institute, 44 How. Prac. 468, cited by us supra, furnishes a striking illustration of how far a respectable court has carried this principle. The defendant corporation was there shown to have adopted Cushing’s Manual as its rules of parliamentary government. A member being expelled for using improper language at a meeting of the society, the court, upon his application by mandamus, restored him upon the ground of the irregularity of the corporate proceedings by which it was sought to disfranchise him. This defect consisted in the fact that the words used were not reduced. to writing, and acted upon at the meeting at which they were spoken.

Applying these principles to the present case, the facts show that there was no written statement or report made by the treasurer of the society at the regular annual meeting held in April for the revision of the roll, or at any subsequent meeting. The mere reading of the name of the relator from a book, without more, very clearly was not such a written statement within the meaning of article 36 of the constitution.

It is also made to appear that there was no vote of the society taken on this subject, as required, in our opinion, by the 59th article, to the provisions of which we have above adverted. As to this fact there is no controversy. But it is insisted that the subsequent action of the society, taken on the 26th of April, and on the 3d of May following, was sufficient, at which the forfeiture of the relator’s membership was expressly declared by a majority of a quorum of members present and voting. These proceedings were, in our opinion, irregular for reasons most obvious.

The rule is settled’, that all members of a body corporate are presumed to know of the times appointed by the charter or by-laws for the transaction of particular business; and, therefore, no special notice is required to be given of such meeting, or of the intention to transact such business. — Dillon’s Mun. Corp. §§ 200-1; Woods’ Field Corp. § 201, p. 314. So it is equally well settled, that any corporate body, whether municipal or private, can transact any business at an adjourned meeting, which could have been done at the original meeting, the former being but a continuation of the latter.—Woods’ Field Corp. § 203; Warren v. Mower, 11 Vt. 385.

It does not appear, however, that any action was taken on the subject of contention at the regular meeting fixed by the constittition for its consideration, nor was the matter adjourned to another day. If either course had been taken, the relator would, no doubt, be charged with implied or constructive notice of the proceeding, even though he were not personally present. It is no doubt to a case like this that article 8 of the constitution is especially applicable, so far as it provides, that when a member’s name is striken from.the roll, he shall be notified of the fact by the secretary. It is not contended that the relator, Weatherly, had any personal notice of the proceedings of the society taken on April 26th, or on May 3d, which sought'to effect his disfranchisement and amotion. Nor was he chargeable, as we have seen, with implied notice. These proceedings were, therefore, irregular for want of notice under the principle which, we have already announced, supported, as we believe it is, by both reason and authority. They are not, then, binding upon the relator, and must be vacated on the ground of their irregularity.

¥e are not to be considered as deciding any principle which can be construed as denying to the Medical and Surgical Society of Montgomery County the full authority to deal with the relator, or any of its other members, in its own way and according to its own discretion, after due notice and by due course of regular procedure; provided only that their corporate action violates no established rule of law, and is in conformity to the constitution and laws of the society established for its own government. Nor do we intimate any opinion that the power of the society to take action in this matter ceased, because it was not put into exercise at the regular meeting fixed for the revision of the roll. As to this point we decide nothing. Our decision goes no further than to vacate proceedings deemed to-be irregular. It does not affect the right to take other proceedings which may be regular, under the principles which we have above announced.

The judgment of the city court is construed by us to be in full accordance with these views; and it must, therefore, be affirmed, so far as it affects the rights of the relator, Weatherly.

Bbiokell, O. J., dissenting.