Commonwealth ex rel. Fischer v. The German Society

• Decision Date: 25 February 1851
• Citation: 15 Pa. 251
• Parties: Commonwealth <I>ex rel.</I> Fischer <I>versus</I> The German Society.
• Court: Pennsylvania Supreme Court

Page 251

15 Pa. 251

Commonwealth ex rel. Fischer versus The German Society.

Supreme Court of Pennsylvania.

February 25, 1851.

ERROR to the Common Pleas of Philadelphia.

Brightly, for plaintiff in error.—The first, second, and third causes of demurrer relate to the insufficiency of the cause of disfranchisement as set forth in the return.

The return must state facts, and not conclusions of law; so, all the facts of an amotion must be distinctly shown, that the court may judge of its sufficiency, both as to the cause and the form of their proceedings: Willcock on Corp., part 2, sec. 180, 223, 226; Rex v. Liverpool, 2 Burr. 731; Rex. v. York, 5 T. R. 76; Ang. & Am. on Corp., chap. 20, sec. 8, and cases there cited; 6 Ser. & R. 476; 1 Ser. & R. 254-5; Sayer 37; Ld. Raym. 1566.

Here the cause of amotion is stated to be that the relator had "violated the laws of the society by having assisted, as president,

in defrauding the society out of the sum of fifty cents," without stating in what manner he had assisted in defrauding the society: no circumstances of time or place are given, nor is it even shown that he designedly assisted in the alleged fraud; the other, of "defaming and injuring the society in public taverns," is equally vague in its character.

The fourth cause of demurrer was not pressed by the counsel.

The fifth and sixth causes of demurrer are, that it is not shown that the relator had notice to appear and defend himself, and that he was not heard in his defence before the society. It appears that a committee of investigation was appointed, who proceeded to inquire into the charge, not on the oaths of credible witnesses, but by hearing the allegations of the complainant and the accused; that they made a report to the society, which was adopted, and immediately thereafter, without any notice to the relator, or giving him a chance of making a defence, he was expelled. This was not only a clear violation of the law of the land, but of the charter of the society, which expressly provides "that the party charged shall always have the right of being heard in his defence, be confronted with the witnesses against him, and of producing evidence in his favor."

The return must show the cause of amoving, notice to the person amoved, that an assembly of the proper persons was duly held, the proceedings before them, a conviction of the offence, and an actual amotion by them: Will. on Corp. pt. 2, sec. 223; 2 Burr. 731. In all cases where the officer is entitled to notice to appear and defend himself, the return must aver that such a notice was given him: Will. on Corp. pt. 2, sec. 235; id. pt. 1, sec. 691, 692, 694, 700. If a corporation strike off a member, without giving him previous notice of their intention, and an opportunity to be heard in his defence, a mandamus will be granted to restore him: Delacy v. Neuse Navigation Co., 1 Hawks 274. Here, not only was no notice given, nor was the relator heard in his defence, but there is not even a conviction of the offence charged: 12 Mod. 29.

The seventh cause of demurrer is, that it is not shown that any witnesses were heard in support of the charge against the accused.

The charter expressly requires that the charge should be proved by two or more credible witnesses. "The return must state specifically the charges that were made against the prosecutor as grounds for his amotion, and that they were either proved on oath or confessed:" Ang. & Am. on Corp. ch. 29, sec. 8; 8 Mod. 99; 5 Mod. 258; 2 Salk. 428; 8 T. R. 356; Will. on Corp. pt. 2, sec. 240; id. pt. 1, sec. 702.

The eighth cause of demurrer is that the accused was expelled in his absence, and without an opportunity of defending himself. It is not alleged that the relator was present, and it affirmatively appears that the messenger was directed to notify him of his expulsion which is the only notice that appears to have been given him.

All or any of these reasons, it is submitted, are sufficient cause for awarding a peremptory mandamus. "In all cases of special and limited authority, especially when it is penal in its character, and to be exercised in derogation of the common law, great strictness and jealousy ought to be exercised, not only in construing the law, but in canvassing the proceedings:" Phillip's case, 1 West. Leg. Obs. 300.

The society rely on the cases of the Com'th v. The Pike Ben. Soc., 8 W. & Ser. 247, and Toram v. The Howard Ben. Assoc., 4 Barr 519. But these cases only...