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sume that it conclusively established the plaintiff's right to recover, and that the court ruled correctly. It is quite immaterial if the testimony preserved in the record tends, or seems to tend, to disprove the plaintiff's right of action. The presumption in that case is that other testimony was given on the trial, which destroys the force of that preserved. The learned counsel for the defendant does not controvert the general rule above stated, but claims that this case is not within it. His position is that the case is ruled by Kollock v. Stevens Point, 37 Wis. 348, wherein the judgment of the circuit court was reversed for error in an instruction to the jury, although a certificate that the bill of exceptions contained all of the testimony was wanting.

In that case the plaintiff sued the city for her services in the care of a person in her house infected with the small-pox, who afterwards died, for services and expenses incurred in the burial of the deceased, and for certain of her goods which were burned, and for the loss of the use of portions of her hotel, because of the infection. She alleged in her complaint a special agreement with the proper city officers to render such services. The judge instructed the jury in effect that, in the absence of any special agreement, the city was liable for a portion, at least, of such expense and damage to the plaintiff, including the goods burned. This instruction was held erroneous, and the judgment was accordingly reversed.

The distinction between the two cases is this: In Kollock v. Stevens Point the judgment of the circuit court was reversed because the judge gave the jury an erroneous rule of law-a rule which no state of facts would justify; while in this case the instruction or direction to find for the plaintiff involved no proposition of law, but only an assumption of fact, presumably correct as the record stands.

The true rule seems to be that, if no possible testimony would sustain a material ruling or direction of the court, the judgment will be reversed on the appeal of the party against whom the ruling is made, although the testimony is not preserved. But the judgment will not be reversed because of a ruling which might be upheld by possible testimony, unless the whole of the testimony is preserved in the bill of exceptions, evidenced by the proper certificate. But perhaps this is little or nothing more than a statement of the distinction between a proposition of law and one of fact. The judgment in Kollock v. Stevens Point went upon an erroneous proposi

tion of law; while in this case error is assigned upon a proposition of fact, and the record does not furnish the means of determining that it is erroneous.

The judgment of the circuit court must be affirmed.

THE STATE OF WISCONSIN ex rel. CHARLES CUPPEL, Appellant, VS. THE CHAMBER OF COMMERCE OF THE CITY OF

MILWAUKEE and others, Respondents.

Filed December 16, 1879.

1. In an action against a corporation and its directors, a defendant director, who was also secretary of the corporation, made an affidavit of the prejudice of the judge, and asked for a change of the place of trial; stating in the affidavit that he made it, and asked the change for himself, and in behalf and at the request of all the other defendants. Held, sufficient.

2. The jurisdiction and duty of the courts of this state, in exercising the visitorial or superintending power of the state over its own corporations, to confine them within their franchises and correct and punish abuses thereof, asserted, and the modes of exercising such jurisdiction stated.

3. A demurrer to the relator's answer to the return to an alternative mandamus, treated as a demurrer to the relation.

4. The imposition of a fine upon a member of the defendant corporation, in his absence, without notice, formal complaint or trial, held a void proceeding.

5. Where, after the member had been suspended for refusal to pay such fine, the proceeding was annulled by the directors, and the member restored, such void proceeding against him is no bar to a subsequent regular proceeding for the same offence.

6. A rule of the defendant chamber of commerce prohibiting its members from "gathering in any public place in the vicinity of the exchange room," and "forming a market" for the purpose of making any trade or contract for the future delivery of grain or provisions, before the time fixed for opening the exchange room for general trading, or after the time fixed for closing the same, daily, held to be within the power conferred on the corporation by its charter, (chapter 157, P. & L. Laws of 1857, amended by chapter 39 of 1877,) and not to be unreasonable, or an unlawful restraint upon trade, nor void for uncertainty.

7. Under the present charter of said defendant it may, by rule or bylaw, confer upon the board of directors the power, and impose upon it the duty, of suspending a member convicted of a violation of the foregoing rule, who refuses to pay the fine imposed upon him therefor by the president, in pursuance of another clause of the same rule. State ex rel. Graham v. Chamber of Commerce, 20 Wis. 63, approved but distinguished.

8. The relator having been fairly tried, upon due notice, and in accordance with the rules of the corporation, and there being abundant proof against him tending to show that he had committed the offence charged, he will not be restored by mandamus. But whether the court, in such a case, will look into the testimony for any purpose, quære.-[STATE REP.

Appeal from Milwaukee county court.

The board of directors of the chamber of commerce having suspended the relator, a member of the chamber, from the privileges of membership, for non-payment of a penalty imposed upon him for an alleged violation of one of the rules of the chamber, the relator sued out of the circuit court an alternative writ of mandamus, commanding the respondents to restore him to membership or show cause to the contrary. On motion of the attorney for all the respondents, founded upon the affidavit of Langson, the secretary, and ex officio a director, the circuit court changed the place of trial to the county court for the alleged prejudice of the circuit judge. Langson says, in the affidavit, that he makes it "on his own behalf, and on behalf and at the request of all the others, the above named respondents;" and "for himself, and for and on behalf and at the request of all the others, the above named respondent, prays that the place of trial of this, the said action, may be changed according to law."

When the case reached the county court the relator moved that it be remanded to the circuit court "on account of the irregular and improper removal of the said action because no proper and legal application has been made therefor." The county court denied the motion. Thereupon the relator filed an amended relation; the respondents made return to the same, and the relator interposed an answer to such return. The respondents demurred generally to such answer, and specially to the various parts or paragraphs into which it is divided. The grounds of demurrer assigned (covering the whole pleading) are chiefly that the averments contained therein are argumentative and immaterial, and that the pleading contains matter of law alone.

The court sustained the demurrer, and gave judgment for the respondents, denying a peremptory mandamus, and dismissing the relation. The relator has appealed to this court from the judgment.

The history of the controversy between the relator and the chamber of commerce, out of which this action arose, as the same appears by the amended relation and the exhibits thereto attached, is substantially as follows:

The president of the chamber of commerce imposed upon the relator, a member of the chamber, a fine of five dollars for an alleged violation of one of the rules of the chamber. The relator refused to pay it. Thereupon the board of directors, on or about October 30, 1878, adopted a resolution

suspending him from the privileges of membership until he should pay such fine.

The relator then sued out of the circuit court an alternative writ of mandamus, commanding the chamber of commerce and its board of directors to reinstate the relator, or show cause to the contrary. It is alleged, in the relation or petition for the writ, that the relator had no notice of the proceeding against him until after the fine had been imposed; "that no charges in writing had ever been exhibited or served upon him; that he has had no trial therefor; has seen or heard no testimony against him convicting him of any offence whatever; and he denies he is guilty of any."

November 20, 1878, the board of directors rescinded the resolution suspending the relator, and restored him to the privileges of a member of the chamber. Afterwards the respondents in the alternative writ of mandamus made return thereto that they had thus restored him.

November 22, 1878, a formal charge for violating the same rule was preferred by the secretary against the relator, of which due notice was served upon him. A time was appointed for his trial before the board of directors, at which time he appeared before the board in person and by counsel. A trial was had, and witnesses on both sides were sworn, examined and cross-examined; and counsel for the relator argued the case to the board. It should be stated that the relator objected to the sufficiency of the complaint, and also insisted, as a bar to the proceedings, that the matter had once been adjudicated against him, and further, that there was no legal authority for the proceedings. The board overruled these several points or objections, and found the relator guilty of the offence charged. The president thereupon imposed upon him a fine of five dollars, and the board (nine members thereof being present and voting) unanimously adopted the following preamble and resolution:

"WHEREAS, Charles Cuppel has been found guilty in manner and form evidenced by the foregoing resolution, in pursuance of the power given under section 6 of rule 11, to inflict such discipline as the board of directors may determine.

"Resolved, That the said Charles Cuppel be and hereby is suspended from the privileges of membership of the chamber of commerce until he shall have paid the fine inflicted upon him by the president; this resolution to take effect immediately upon notice being served upon said Charles Cuppel of

the infliction of said fine and the passage of this resolution, and upon his neglect or refusal forthwith to pay said fine."

The foregoing proceedings by and before the board were had November 29, 1878, and on the day following due notice in writing of such proceedings and demand of payment of the fine, signed by the secretary, was served upon the relator. It does not appear that the fine was paid. It is a fair inferance from the allegations in the relation that it was not.

.

From the time of such demand the relator has been excluded from the rooms of the chamber of commerce, and from the privileges of a member thereof, and brought this action for the purpose of compelling the respondents to restore him to those privileges.

The confused state of the record, and the great mass of exhibits attached to the amended relation, and constituting portions of it, have rendered it extremely difficult to ascertain the precise facts alleged by the relator; but it is believed that the foregoing is a correct statement of all the facts alleged by him which are material to the case.

The return or answer of the respondents to the relation, and the reply of the relator thereto, are sufficiently noticed in the opinion, and it is not necessary to state their contents here.

J. J. Orton, for appellant.

L. S. Dixon and N. J. Emmons, for respondents.

LYON, J. We think the place of trial was regularly changed from the circuit to the county court, and that the latter court had jurisdiction of the case. Langson, who made the affidavit for such change, was the secretary and a director of the chamber of commerce, and a defendant in the action. He swears in such affidavit that he makes the same and prays for the change on behalf and at the request of all the defendants, and all of them moved, by their attorney, for such change. The case is clearly within the rule of Walcott v. Walcott, 32 Wis. 63, and Rupp v. Gwineford, 40 Wis. 28.

The visitorial or superintending power of the state over corporations, created by the legislature will always be exercised in proper cases through the medium of the courts of the state, to keep those corporations within the limits of their lawful powers, and to correct and punish abuses of their franchises. To this end the courts will issue writs of quo warranto, mandamus or injunction, as the exigencies of the particular case may require; will inquire into the grievance complained of, and, if the same is found to exist, will

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