Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

is given to the society by the charter to buy or sell. It can only receive bequests or donations. And even these it cannot take for any individual benefit, but only for the promotion of the purposes of the society. And what are they? The lessening of fatality and the improvement of the science of medicine. Can any physician purchase any right in or to the society? Can he sell any right he as a member of the society may have? Can he convey to another his right by will or deed? Or, if he die, will his rights descend or go to his legal or personal representatives? Clearly not. If, then, no member has any right which lie can buy or sell, or bequeath or transmit, can his right in any sense be said to be property? I think not.

If, then, the relator had no property in the sense referred to, let us turn to the second supposed right and see if it can be a vested right, to wit :the right to improve the science of medicine. This is one of the objects of the society, and it may be said that membership is necessary to its accomplishment. But it is only necessary to ask the question, can this, in any possible sense, be a vested right, to have the response in the negative. The relator's right to accomplish that benevolent end can neither be increased nor diminished in or out of the society. This question, it seems to me, will not bear discussion.

But, thirdly, has the relator's right to charge or collect fees as a practitioner been taken away by his expulsion from the society ? He neither acquired this right in entering the society, nor lost it on his expulsion. He had it before, and he has it now unimpaired.

Fourthly. Was the relator's right to meet the other members of the society in social intercourse, or even in professional intercourse, a vested right? It is true that while a member of the society lie had the right to enter the society, to join in the deliberations of that body, and to do all acts incidental to its object and designs, but can this, in any sense, be called a vested right? A member of the Georgia Historical Society, for instance, so long as he deports himself in compliance with the rules established for its government and purposes, has the right to meet that body and take part in its deliberations, but it will hardly be suggested that such a right is so vested in him, as that he cannot forfeit it short of the commission of a crime. Each of these societies is eminently of a social nature; and social standing, good character,

respect of its members, harmony of action, and brotherly kindness, are essential to the accomplishment of the objects of both; and it seems just as reasonable and right that each should be vested with the power to rid itself of an objectionable member, as that either should have the right to prevent a disreputable character from acquiring membership.

But suppose the relator has a vested right in either of the four ways suggested (and I can conceive of no other possible right he or any member of this society can have), can all or any of such rights be enforced by the writ of mandamus? If he has a vested right in property, he can enforce that by a common-law process.

. His interest, if property, is ascertainable and can be recovered. But can the writ of mandamus compel the members of the Georgia Medical Society to return any or all of the other three supposed rights? I think not. We have already seen that the relator's right to practice his profession and collect his fees exists independent of his connection with the Georgia Medical Society; and it is not necessary, therefore, to discuss that question. But as to the third and fourth possible rights, it is to be observed that they, in my judgment, are not within the scope of the operation of the writ of mandamus. They are eminently and exclusively social, not to say ethical, or if you please ästhetical questions. The court might order The Georgia Medical Society to receive the relator into free membership, and yet as to these two rights of membership, to wit, social meeting and promoting the benevolent objects of the society, the court has no power to enforce its mandate. Suppose the members of the society refuse to meet with the relator, refuse to discuss medical science with him, refuse to consult with him, refuse to exert any effort, physical or mental, to carry out the purposes of the society, what power of compulsion has this court which it can bring to bear on such recusant members ? The bare question shows its impracticability.

I must, therefore, refuse the mandamus.

[ocr errors]

The result arrived at in the foregoing ship, even in a merely literary or social case appears, so far as we gather from club, are not vested rights which the the facts reported, to be substantially law will protect, and many cases have correct, but the decision can hardly be laid down with great stringeney, rules supported on the reasoning of the opinion. which must govern the exercise of even

No case that we have seen has gone the most unlimited discretion as to exso far, as to say that rights of member- pulsion of members from societies,

The early English decisions, begin- cised might differ according to the disning with the famous case of James tinction made in offences. For the first Bagg, reported by Lord COKE, 11 Rep. class of offences a corporator can only 93, were cases of amotion or disfran- be amoved after conviction in a court of chisement in public or municipal cor- law; but for the second sort, the power porations. In Bagg's Case, it was re of trial as well as removal is incident to solved by the Court of King's Bench every corporation. that the power of disfranchisement could The reasoning and authority of Lord only be exercised under authority given MANSFIELD, in Rex v. Richardson, have by express words in the charter, or by been followed with great uniformity in prescription; and where no such express subsequent cases both in England and authority existed, there must be a con- America, though the courts have shown viction of some offence in a court of law a strong tendency to restrict the exercise before the offender could be disfran- of the power of expulsion for causes of chised.

the second class to cases of acts directly As corporations however grew more and unequivocally against the very purnumerous, and their character and pur- pose and existence of the corporation. poses essentially changed, it was found The leading American case is Commonthat this limitation of power was too wealth v. President of St. Patrick Benenarrow to meet the cases then arising, volent Society, 2 Binn. 441 (1810). The and in what may be called the second society was a charitable corporation, for leading case on the subject, Rex v. the purpose of raising funds to assist its Richardson, 1 Burr. 517, it was decided members in sickness, &c. By the charthat a corporation may make a by-law ter it was authorized to make rules and giving power of amotion for just cause, by-laws, and to do everything needful though the corporation that made it had for the good government and support of no power of amotion expressly given the corporation. A by-law enacted, by charter or claimed by prescription. that “vilifying any of its members" Lord MANSFIELD in delivering judg- should be a crime against the society, ment said: “ There are three sorts of and might be punished by expulsion. offences for which an officer or corpora. The relator was expelled for this offence. tor may be discharged :

The proceedings were regular, and the "1. Such as have no immediate rela.

case turned on the validity of the by-law. tion to his office, but are themselves of so The court, by TILGIMAN, C. J., held infamous a nature as to render the the by-law void, on the ground that prioffender unfit to execute any public vate quarrels of members were totally franchise.

unconnected with the purposes of the “ 2. Such as are only against his oath society, and such a by-law therefore was and the duty of his office as a corporator ; not necessary for its good government and amount to breaches of the tacit con and support, and awarded a peremptory dition annexed to his franchise or office. mandamus to restore the relator.

“3. Offences of a mixed nature-as It is very clear that the character of being an offence not only against the an act considered as an offence of the duty of his office, but also a matter in second class enumerated by Lord Mansdictable at the common law." The FIELD, depends materially on the nature power of amotion, therefore, he said, and purpose of the corporation itself. was incident to every corporation, though Money corporations properly so called, the manner in which it should be exer that is corporations whose primary object

is the acquisition of property or profit The course of reasoning, therefore, by for its members, stand on a very different which the learned judge in the principal basis from those in which profit to indi- case refines away the rights of the relavidual members has no part, and in tor, cannot be considered as supported which acquisition of property in the cor- by authority, nor can the denial of the poration itself is merely incidental to remedy by mandamus. It was decided its real purposes and objects. In the by Lord MANSFIELD in Rer v. Barker, former, it is conceded that the power of 3 Burr. 1265, that mandamus is the proexpulsion can only be exercised under per remedy, and this has been uniformly express authority derived from the followed both in England and America. charter: Angell & Ames on Corp. The result of the adjudicated cases on ?? 113, 410. But even in the latter the subject of amotion and disfranchiseclass, the courts have uniformly treated ment, would seem to reduce the power membership as a vested right which they of expulsion within very narrow limits. would protect from illegal or irregular Social clubs, however, being of very reinterference. Thus, in Fuller v. Trus- cent origin, and scientific or literary tees of Plain field Academy, 6 Conn. 532, societies having a social basis and chait was held that the place of a trustee in racter having of late grown into iman eleemosynary corporation, though no portance, it must be expected that the emoluments are attached to it, is yet a cases arising hereafter in reference to franchise of such nature that a person

such societies cannot be fairly brought improperly dispossessed of it is entitled within the stringent rules in regard to to redress, and a peremptory mandamus expulsion of members, which have been was awarded. So in People ex rel. Gray found just and satisfactory hitherto. As v. Medical Society of Erie, 24 Barb. 570. the change in times and manners from The medical society established a fee- Lord Coke to Lord MANSFIELD led the bill, and provided by a by-law that any King's Bench to the distinctions taken member taking a smaller fee than the between Bagg's Case and Rex v. Richone prescribed in the fee-bill might be ardson, so the changes of the last cenexpelled. The society had by statute tury must bring the courts to a more the right to make by-laws regulating liberal application of the principles of the admission and expı:lsion of mem- the latter case. bers. The relator was expelled by the The true and solid ground on which society for violation of the fec-bill, and to decide such cases is, as it seems to us, on mandamus the court ordered him the contract of membership, liberally restored, on the ground that the by-law construed with reference to the purwas not one within the proper powers poses of the corporation or society. The of the society.

classification of Lord MANSFIELD) is To the same effect are the numerous sufficiently comprehensive. “ Secondcases cited by the counsel for the relator ly," he says, "such as are against the in the principal case, and also Evans v. duty of his office as a corporator; and The Philadelphia Club, 14 Wright (50 amount to breaches of the tacit condition Penn.) 107, a very interesting case, annexed to his franchise.Whether an which was argued with great earnestness act be such a breach or not should be by very able counsel on both sides. judged entirely by its effect on the soThe decision being unfortunately by a ciety; and if by his assent to the laws divided court, with no reasons assigned, and rules of the society, a member has has not the authority to which it would agreed that the corporation, or any part otherwise be entitled.

of it, shall be the tribunal to decide the

fact, then the courts instead of being It is clear that every member has conastute to discover defects of jurisdiction tracted to abide by that rule which gives (as it must be confessed they have in an absolute discretion to two-thirds of many of the American cases), should the members present to expel any memaim liberally to support the judgment of ber. Such discretion, like that referred the tribunal agreed upon.

to by Lord Eldon in White v. Damon, In the latest English case on this sub- 7 Ves. 35, must not be a capricious or ject, Hopkinson v. Marquis of Exeter, arbitrary discretion. But if the decision Law Rep. 5 Eq. 63, the complainant has been arrived at bona fide, without being a member of the Conservative Club, any caprice or improper motive, then it had given pledge that he would vote for is a judicial opinion from which there is certain liberal candidates at the parlia- no appeal.” mentary election, and for this he was It does not appear from the report expelled from the club. The rules of whether the club was incorporated or the club made no reference to the politi- not; but, putting the decision fairly on cal opinions of its members, except so the contract of the member to abide by far as they were implied from its name. the judgment of the tribunal established Lord ROMILLY, M. R., refused to re- by the by-laws, we are unable to perstore the complainant, on the ground ceive that the fact of incorporation is at that he had submitted to the jurisdiction all material. of the club by becoming a member, and If the decision in the principal case the proceedings had been regular accord- had been rested on the by-law quoted, ing to the by-laws. A club, he said, and the regularity of proceedings under was a partnership, but of a different kind it, we think it would have stood on a from any other; and the members had basis of sound reason, and have been by rules constituted a tribunal for the strictly within the principle of Lord decision of questions of membership and MANSFIELD's judgment in Rex v. Richexpulsion. “The question is, whether ardson.

J. T. M. there is any appeal from that decision.

Court of Appeals of Maryland.

NORTHERN CENTRAL RAILWAY CO. v. CANTON CO.1

Trade fixtures and buildings for trade, no matter how strongly attached to the soil or firmly embedded in it, are treated as personal property, and as such subject to removal by the person erecting them.

The road-bed of a railway, the rails fastened to it, and the buildings at the depots are real property ; but under certain circumstances they may be trade fixtures, and be treated as personal property.

The ground upon which a tenant's right to remove his fixtures has been limited during the continuance of his term, rests upon the doctrine, that if he neglected to avail himself of his right within this period, the law presumed that he voluntarily

We are indebted for the opinion in this case to the Baltimore Law Transcript.--Eds. Am. L. R.

« ΠροηγούμενηΣυνέχεια »