Jackson s v. South Omaha Live Stock Exchange

• Decision Date: 18 November 1896
• Docket Number: 6922
• Citation: 68 N.W. 1051,49 Neb. 687
• Parties: ALMA JACKSON ET AL. APPELLANTS, v. SOUTH OMAHA LIVE STOCK EXCHANGE ET AL. APPELLEES
• Court: Nebraska Supreme Court

68 N.W. 1051

49 Neb. 687

ALMA JACKSON ET AL. APPELLANTS, v. SOUTH OMAHA LIVE STOCK EXCHANGE ET AL. APPELLEES

No. 6922

Supreme Court of Nebraska

November 18, 1896

APPEAL from the district court of Douglas county. Heard below before WALTON, J.

AFFIRMED.

John T Cathers, for appellants:

The exchange has no authority to fine, suspend, or expel a member. Its charter confers no such authority. The character of a corporation is the measure of its powers, and the enumeration of those powers implies the exclusion of all others. Such powers cannot, therefore, be extended by by-laws. A by-law is void where it is contrary to the common law, to a legislative enactment, or to the state or federal constitution. (State v. Atchison & N. R. Co. 24 Neb 144; People v. Chicago Gas Trust Co. 130 Ill. 268; Hood v. New York & N.H. R. Co. 22 Conn. 502; Franklin Co. v. Lewiston Savings Bank, 68 Me. 43; Commonwealth v. St. Patrick Benevolent Society, 2 Bin. [Pa.] 441; Evans v. Philadelphia Club, 50 Pa 107; Fuller v. Trustees of Academic School in Plainfield, 6 Conn. 532; Gray v. Medical Society of Erie County, 24 Barb. [N.Y.] 570; Butchers Beneficial Association, 35 Pa. 151; Butchers Beneficial Association No. 1, 38 Pa. 298; Commonwealth v. Worcester, 3 Pick. [Mass.] 462; In re Long Island R. Co. 19 Wend. [N.Y.] 37; People v. Throop, 12 Wend. [N. Y.] 184; Hibernia Fire Engine Co. v. Harrison, 93 Pa. 264; Thomas v. West Jersey R. Co. 101 U.S. 71; Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. 118 U.S. 290; Taylor v. Porter, 4 Hill [N.Y.] 140; City of St. Louis v. Weber, 44 Mo. 547; City of Ottawa v. Carey, 108 U.S. 110; Farmers & Traders Bank v. Harrison, 57 Mo. 503; Matthews v. Skinker, 62 Mo. 329; Browing v. Board of Commissioners of Owen County, 44 Ind. 11; Bank of Chillicothe v. Swayne, 8 Ohio 258; Miller v. Ewer, 27 Me. 509; Kennebec & P. R. Co. v. Kendall, 31 Me. 471; Westcott v. Minnesota Mining Co. 23 Mich. 145; Sayre v. Louisville Union Benevolent Ass'n, 1 Duval [N.Y.] 143; Dunham v. Trustees of Village of Rockester, 5 Cow. [N.Y.] 462; Brewster v. Hartley, 37 Cal. 15; Andrews v. Union Mutual Fire Ins. Co. 37 Me. 256; Murdock v. Trustees of Phillips Academy, 12 Pick. [Mass.] 244; Mobile & O. R. Co. v. Franks, 41 Miss. 494; Commonwealth v. Erie & N.E. R. Co. 27 Pa. 339; Wolf v. Goddard, 9 Watts [Pa.] 550; McIntyre v. Ingraham, 35 Miss. 26; Diligent Fire Co. v. Commonwealth, 75 Pa. 291; Fertilizing Co. v. Village of Hyde Park, 97 U.S. 660; Downing v. Mount Washington Road Co. 40 N.H. 230; People v. Fire Department of the City of Detroit, 31 Mich. 458; State v. Chamber of Commerce of the City of Milwaukee, 20 Wis. 63; Williams v. Lowe, 4 Neb. 382; Phillips v. Allen, 41 Pa. 481; Barter v. Commonwealth, 3 Pen. & W. [Pa.] 253; Benson v. Mayor of the City of New York, 10 Barb. [N.Y.] 224; State v. Doherty, 60 Me. 509; Wally v. Kennedy, 10 Tenn. 554; Atchison & N. R. Co. v. Baty, 6 Neb. 37; Moore v. Bank of Commerce, 52 Mo. 377.)

Charles Offutt and Charles S. Lobingier, contra:

The South Omaha Live Stock Exchange is a voluntary association not subject to the rules of the ordinary trading corporation. (People v. Chicago Board of Trade, 80 Ill. 134; Anacosta Tribe v. Murbach, 13 Md. 91, 71 Am. Dec. 625; Black & White Smiths' Society v. Vandyke, 2 Whart. [Pa.] 309, 30 Am. Dec. 263; White v. Brownell, 2 Daly [N.Y.] 329.)

The power to make and enforce rule 9 is inherent in such an association, and need not be conferred by its charter (Rex v. Richardson, 1 Burr. [Eng.] 539; Lord Bruce's Case, 2 Strange [Eng.] 819; Rex v. Liverpool, 2 Burr. [Eng. 1759] 723; Otto v. Journeyman Tailor's Protective & Benevolent Union, 75 Cal. 308; Leech v. Harris, 2 Brewst. [Pa.] 571; White v. Brownell, 2 Daly [N.Y.] 329); but in this case such power is conferred both by the general incorporation law (Compiled Statutes, ch. 16, sec. 124), and by the articles of the incorporation. (Pitcher v. Board of Trade, 13 N.E. 188 [Ill.]; Commonwealth v. Union League, 19 A. 1030 [Pa.].)

The rules were violated in this case by the acts of appellants' agent, and such rules are enforceable. (Martin v. State, 30 Neb. 507; State v. Denoon, 5 S.E. [W. Va.] 315; 1 Wharton, Criminal Law, sec. 247; People v. Blake, 52 Mich. 566; People v. Roby, 18 N.W. 365 [Mich.]; Riley v. State, 43 Miss. 397; Commonwealth v. Kelley, 140 Mass. 441; Dudley v. Sautbine, 49 Iowa 650; Faircloth v. State, 73 Ga. 426; Commonwealth v. Emmons, 98 Mass. 6; Halsted v. State, 41 N.J. Law, 552; State v. Hartfiel, 24 Wis. 60; Jamison v. Burton, 43 Iowa 282; Stern v. State, 53 Ga. 229; Houston v. Gran, 38 Neb. 687; Brown v. Foot, 35 Cent. L. J. [Eng.] 181.)

Courts will only inquire in cases like this whether the proceedings were regular, and they were so in this case. (Pitcher v. Board of Trade, 13 N.E. 188 [Ill.]; Appeal of Sperry, 9 A. 478 [Pa.]; Commonwealth v. Pike Benevolent Society, 8 W. & S. [Pa.] 249; Commonwealth v. Union League, 19 A. 1035 [Pa.]; Commonwealth v. German Society, 15 Pa. 251; Black & White Smiths' Society v. Vandyke, 2 Whart. [Pa.] 308; Vaughn v. Herndon, 17 S.W. 793 [Tenn.]; Lewis v. Wilson, 121 N.Y. 284, 24 N.E. 474; Bigelow v. Benedict, 70 N.Y. 204; White v. Brownell, 2 Daly [N.Y.] 329; Lambert v. Addison, 46 Law T. [Eng.] n. s. 20; Dawkins v. Antrobus, 17 Ch. Div. [Eng.] 615; Gregg v. Massachusetts Medical Society, 15 Am. [Mass.] 24; Austin v. Searing, 69 Am. Dec. 677; Hiss v. Bartlett, 63 Am. Dec. [Mass.] 776.)

Even had appellants not been served with a copy of the charges, their appearance would have constituted a waiver of that omission. (Sperry's Appeal, 8 Cent. [Pa.] 219, 9 A. 478; Burton v. St. George's Society, 28 Mich. 261; Commonwealth v. Pennsylvania Beneficial Society, 2 S. & R. [Pa.] 140; Loubat v. Leroy, 65 How. Pr. [N.Y.] 138, 15 Abb. New Cases [N.Y.] 1.)

Mahoney, Minahan & Smyth, also for appellees.

RYAN, C. IRVINE, C. not sitting.

OPINION

The opinion contains a statement of the case.

RYAN, C. J.

Plaintiffs who constitute the firm of Jackson, Higgins & Co. brought this action in the district court of Douglas county against the South Omaha Live Stock Exchange, a corporation, which, with its officers, were made defendants, to enjoin the collection of a fine of $ 250 assessed against said Jackson, Higgins & Co. for the violation of certain rules of said corporation, of which corporation the individuals composing the firm of Jackson, Higgins & Co. were members. There was a decree denying the injunction prayed, and plaintiffs in this action have appealed.

The grounds on which relief was sought in the district court were irregularities in the action of the board of directors of the South Omaha Live Stock Exchange in the progress of the hearing pursuant to which the plaintiffs were fined, as well as improper proceedings before the trial, and an entire lack of authority in said board to fine and in default of payment thereof to suspend plaintiffs' rights as members of said corporation. In the petition was first alleged the existence of the corporation above referred to. Defendants were then described as officers of said corporation, and plaintiffs' relation to it was then stated. It was averred that on May 19, 1892, plaintiffs received a notice signed by A. L. Lott (who was secretary of the association), by which plaintiffs were required to appear at the rooms of the above described exchange on May 23, 1892, to show cause why they should not be dealt with for a violation of rule 9 of said corporation. Accompanying this notice there was given the plaintiffs a written statement in this language:

"SOUTH OMAHA, NEB. May 19, 1892.

"Jackson, Higgins & Co. South Omaha, Neb.--GENTLEMEN: You are hereby charged with violating rule 9 of this exchange, in this, that on or about the 12th day of April, 1892, you did, through one J. J. Raymaker, your authorized agent, pay one George F. Burke, of Bradshaw, Nebraska, the sum of $ 3.20 (three and twenty-hundredths dollars) as consideration and for the purpose of inducing said Burke to bill a car of cattle to the firm of Jackson, Higgins & Co.

J. A. HAKE,

"Pres, and Chairman of Board of Directors."

It was alleged in the petition that on May 23, 1892, the board of directors of the exchange met, and after repeated adjournments ordered that the appellants herein pay a fine of $ 250 and be suspended until such fine should be paid. There was in the petition a statement of the facts, which, as plaintiffs claim, the evidence introduced on these hearings established. Even if the district court, by an injunction proceeding, could act as a court reviewing the findings of fact of the board of directors complained of, it could only do so upon evidence embodied in a bill of exceptions, duly settled. The evidence before the board, as described in the district court by the several witnesses, was contradictory in its nature, and this would constitute another and sufficient ground for the court's refusal to set aside or disregard such findings. Thus considered, this case presents but few important features, and these shall now be considered in detail.

It was alleged in the petition that no notice of the proposed hearing had been served before the hearing, as required by the rules of the exchange. As has been already shown, there was a notice, accompanied by a written statement signed by the president and chairman of the exchange, by which, in general terms, the firm of Jackson, Higgins & Co. was notified of the time and place of the proposed hearing, as well as of the general nature of the charges preferred. At the time so designated there was filed by Jackson, Higgins & Co. a paper which put in issue all the matters as to which evidence was afterwards introduced. It is true there was on the hearing an objection to the sufficiency of the notice,...