Hempstead v. The A. T. & S. F. Hospital Association

• Decision Date: 04 November 1922
• Docket Number: 24,541
• Citation: 210 P. 492,112 Kan. 241
• Court: Kansas Supreme Court
• Parties: C. E. HEMPSTEAD, Appellee, v. THE A. T. & S. F. HOSPITAL ASSOCIATION et al., Appellants

210 P. 492

112 Kan. 241

C. E. HEMPSTEAD, Appellee, v. THE A. T. & S. F. HOSPITAL ASSOCIATION et al., Appellants

No. 24,541

Supreme Court of Kansas

November 4, 1922

Decided July, 1922.

Appeal fro Shawnee district court, division No. 1; JAMES A. MCCLURE judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--Asking Recognition as Trustee of Private Corporation--Answer Disqualification of Plaintiff--Want of Good Moral Character--Answer States a Good Defense. Where one claiming to have been elected as a member of the board of trustees of a private corporation brings mandamus against the other trustees to compel them to recognize him in that capacity, an answer setting out that he is ineligible by reason of a disqualification involving turpitude states a good defense, notwithstanding the general rule is that in mandamus brought to obtain possession of an office it is sufficient for the plaintiff to show a prima facie title and that the ultimate right to the office cannot be adjudicated in that proceeding.

2. SAME--Answer Alleges Plaintiff Was Guilty of Embezzlement. The answer is held to have contained a sufficient allegation that the plaintiff was guilty of embezzlement.

3. SAME--Plaintiff Charged With Having Committed Embezzlement--Reformation Not Presumed. The fact that one has committed an offense involving turpitude, such as embezzlement, is conclusive evidence that he was not, at the time, of good moral character, and reformation is not to be presumed merely from the lapse of a brief period.

4. SAME--By-laws of Private Corporation--Good Moral Character An Essential Qualification to Hold Office of Trustee. Where a stipulation is entered into in an action between the state and a railway hospital association, a private corporation, providing for the election of a part of the trustees of such association by the railway employees contributing to its support, and containing a provision that "all of the trustees shall be persons of good moral character," the possession of a good moral character becomes an essential qualification to hold the office, and one who has recently been guilty of a public offense involving turpitude, such as embezzlement, is not eligible thereto, unless upon a showing of reformation, and his ineligibility is not affected by the fact of his having received a plurality of votes at the election.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellants.

James A. Troutman, of Topeka, for the appellee.

OPINION

MASON, J.:

The Atchison, Topeka & Santa Fe Hospital Association is a corporation formed for the purpose of providing medical and surgical treatment for the employees of the Santa Fe and associated railway companies. Prior to 1921 its affairs were managed by five trustees, three of them being such ex officio by virtue of holding certain offices in the Santa Fe railway company, the other two being selected from the employees of that company by its president. In that year an action by the state was brought in this court against the hospital association and its trustees challenging among other things the validity of the method by which the two trustees were chosen. That action was dismissed upon the entrance into a stipulation providing for the amendment of the by-laws so that the two trustees to be selected from the employees should be chosen annually at an election in which each employee contributing to the support of the association should be entitled to vote. The stipulation contained the sentence: "All of the trustees of the association shall be persons of good moral character." Pursuant to the arrangement indicated the by-laws were amended and an election was held in May, 1922, at which the candidates receiving the highest number of votes were R. L. Beeman, who had 12,531, and C. E. Hempstead, who had 9,224. Beeman at once assumed the duties of trustee and has been acting as such. Hempstead attempted to do so but was prevented by the refusal of the other four trustees to recognize him in that capacity. He brought a proceeding in mandamus in the district court seeking a writ compelling such recognition. The defendants filed an answer (supplemented by an amendment) undertaking to justify their conduct on the ground that the plaintiff was not a person of good moral character, inasmuch as he had at one time been prosecuted for forgery, and had lately, while treasurer of an organization of railroad employees, been guilty of embezzling the sum of $ 17,500. A demurrer to the answer was sustained, and the defendants appeal.

1. The defendants assert that by reason of the provision of the stipulation referred to, which was incorporated in the by-laws, that all trustees shall be persons of good moral character, the plaintiff being an embezzler is ineligible to that position and therefore they cannot be required to recognize him in that capacity. The plaintiff among other things contends that the defendants are not entitled to question his eligibility and that it cannot be litigated in this proceeding.

It is often said that the title to an office cannot be tried in mandamus. This is a general, but not a universal rule. Quo warranto is the proceeding adapted to the trial of the direct issue of the title to a public office, particularly when made between two contesting claimants. But where a plaintiff asserts a right which is dependent upon his being a public officer there is no inherent and compelling reason why the fact in that regard may not be determined in the proceeding in which it is asserted, although that happens to be mandamus. (Bailey v. Turner, 108 Kan. 856, 197 P 214.) There is, however, a rule, which is supported by most but not all the decisions on the subject, that the claimant of a public office who brings mandamus to be put into possession of it need only show that he has a prima facie right--such as a certificate of election--and the defendant will not be permitted in that proceeding to go into the question of his eligibility or of the regularity of his selection, such matters being required to be determined by an action to oust him by quo warranto. (18 R. C. L. 263; Note, L. R. A. 1915A 833.) That rule, although a wholesome one, is founded upon convenience and policy and not upon jurisdiction. It is based on the theory that, pending the decision of what may be protracted litigation to determine the ultimate right to an office, it is better that he who has the apparent right--the color of title based on the face of the official returns--shall fill the place, the presumption being for rather than against the validity of his claim. So the holder of the paper title is allowed the speedy remedy of mandamus to gain possession of the office, while he who would challenge his right is relegated to the presumably slower machinery of quo warranto. Whether this rule should be extended to claimants of offices in private corporations does not appear to have been often before the courts. There is a tendency to accord the same treatment to such claimants as to those asserting a right to public offices. (18 R. C. L. 172.) A different practice is indicated by this text statement, to which, however, no case is cited upon the precise point covered by the last clause: "Nor will it [mandamus...