Medical Soc. of Mobile County v. Walker

• Decision Date: 13 January 1944
• Docket Number: 1 Div. 202.
• Citation: 16 So.2d 321,245 Ala. 135
• Parties: MEDICAL SOC. OF MOBILE COUNTY et al. v. WALKER.
• Court: Alabama Supreme Court

16 So.2d 321

245 Ala. 135

MEDICAL SOC. OF MOBILE COUNTY et al. v. WALKER.

1 Div. 202.

Supreme Court of Alabama

January 13, 1944

Wm N. McQueen, Acting Atty. Gen., and Furman Smith, Asst. Atty Gen., for appellants.

D. R. Coley, Jr., of Mobile, for appellee.

LIVINGSTON Justice.

Complainant is a member in good standing of the Medical Society of Mobile County, a voluntary non-profit corporate organization of licensed physicians of Mobile County, Alabama, organized and existing under the laws of the state of Alabama, for the purpose of promoting the general welfare of the members of the society, and in order to develop and foster a feeling of fraternity among its members, and to establish a high standard of professional ethics.

The bill of complaint seeks to restrain Dr. W. W. Scales, as secretary of the society, from enrolling Dr. Virginia E. Webb and Dr. John H. Greene as members of the society, and to restrain the society from recognizing or seating doctors Webb and Greene as members of the society until and unless they shall have been duly elected pursuant to the provisions of the constitution of said society.

The bill alleges that the society has adopted a constitution and a system of bylaws; that it is provided in said constitution among other things, as follows:

"Art. 5. Application for membership shall be made in writing and shall be accompanied by the amount of annual dues. Said application shall be endorsed by at least two members of the society, the endorsers being understood as certifying to the reputable character-personal and professional-of the applicant.

"Art. 6. The vote upon the admission of an applicant shall be by ballot, and shall be taken at the regular meeting next succeeding that at which the applicant was submitted. Three adverse votes shall reject the applicant. The secretary shall notify the applicant in writing as to the result of his application."

The bill further alleges:

"Fourth: That the applications for membership in said Medical Society of Mobile County on behalf of Dr. Virginia E. Webb and Dr. John H. Greene were duly presented to said society in accordance with the provisions of Article 5, section 3 of the constitution, and on, to-wit, April 17th, 1943,-the regular meeting next succeeding that at which the applications were submitted-a vote upon said applications was had by ballot, all as provided in Article 6, section 3 of the constitution.

"Fifth: That upon said ballot more than three adverse votes were cast against the admission of said applicants to membership in the said society.

"Sixth: That notwithstanding the provisions of the constitution as aforesaid and the action by the Medical Society of Mobile County rejecting the applications of said Dr. Virginia E. Webb and Dr. John H. Greene for membership, complainant is informed and alleges that Dr. W. W. Scales, secretary of the Medical Society of Mobile County, Alabama, has enrolled said applicants as members of said society, or intends to do so at the regular meeting of said society on the third Saturday of May, 1943, and that the Medical Society of Mobile County intends to recognize said applicants as members of said society at the regular meeting of said society on the third Saturday of May, 1943, unless they be restrained from so doing by this court.

"Seventh: Complainant further says that he is informed and alleges that the said Dr. W. W. Scales, as secretary, intends to enroll as members of said society and said Medical Society of Mobile County, its officers and members, expects to recognize as members thereof others who may make application for membership therein and who will not be duly elected as members pursuant to provisions of section 3 of the constitution of said society.

"Eighth: Complainant shows that as a member of said society in good standing, he has the right to insist that the membership of said society be chosen as provided by said constitution; that he has no means of redress under the constitution of said society other than he has exercised, and that unless the said Dr. W. W. Scales is enjoined from enrolling the said applicants as members and the society from recognizing them as members, he will be deprived of a substantial right guaranteed to him by the provisions of the constitution of said society."

Demurrers to the bill were overruled, hence this appeal.

A consideration of the statutes which create the State Board of Health and the county boards of health disclose that the Medical Association of the state of Alabama and the Medical Society of Mobile County, as such, are not invested with any power or authority whatever in respect to the health laws of the State. Title 22, Chapters 1 and 2, Code of 1940; see, also, Parke v. Bradley, 204 Ala. 455, 86 So. 28.

We take judicial notice of the existence of the Medical Association of the state of Alabama and of the Medical Society of Mobile County, but not of their constitutions, by-laws, rules and regulations. 31 Corpus Juris Secundum, Evidence, §§ 89, 90, 91, pp. 684, 687. They are but voluntary associations incorporated under the laws of this State.

Membership in a voluntary association is a privilege which may be accorded or withheld, and not a right which can be gained independently and then enforced. The courts cannot compel the admission of an individual into such an association, and if his application is refused, he is entirely without legal remedy, no matter how arbitrary or unjust may be his exclusion. Societies of the sort here considered have the right to make their own rules upon the subject of admission or exclusion of members, and these rules may be considered as articles of agreement, to which all who are members become parties. 4 Amer.Jur. sections 11, 12 and 13, page 462. Chapman v. American Legion, Ala.Sup., 14 So.2d 225, 147 A.L.R. 585 and note. They may make their own constitution and by-laws; and so long as they remain unchanged, each member is alike bound and shielded by them. The society too must observe its own constitution and by-laws until it changes them in legal form. Of course such constitution and by-laws, to be obligatory, must not contravene public law, nor any principle of public policy. Weatherly v. Medical & Surgical Society of Montgomery County, 76 Ala. 567.

The Weatherly case, supra, was twice before this court. The opinion of the court on the first appeal is reported in 75 Ala. 248, in which touching the question of the propriety of the writ of mandamus as an appropriate remedy for the wrongful disfranchisement or amotion of a corporator, and to restore him to the enjoyment of a franchise of which he has been illegally deprived, it was said: "We can entertain no doubt of the jurisdiction of the courts of this State to interfere, in all proper cases, by mandamus, as an appropriate remedy for the wrongful disfranchisement or amotion of a corporator, and to restore him to the enjoyment of a franchise of which he has been illegally deprived. This right of supervision over bodies corporate is one of great antiquity in our law, and is regarded as derived from the visitorial power, always impliedly reserved by the Sovereign or the State in granting corporate charters, and which is exercised through the courts of common law jurisdiction. High on Extr.Rem. §§ 291, 293. The modern and better view is, that this right of judicial visitation is not confined to public corporations, but extends as well to those of a purely private nature. Nor is it limited to such as are organized strictly for business purposes, or pecuniary profit, but is made applicable also to corporations formed for eleemosynary, religious, scientific, or other like purposes.-Angell & Ames' Corp. § 704; State v. Milwaukee Chamber of Commerce, 47 Wis. 670, 3 N.W. 760. The King, under our ancient law, was the legally constituted visitor of all corporations, whose franchises may have been granted to subjects by his grace and authority, a jurisdiction, which was exercised through the medium of the courts, and the chief function of which was 'to render their charters, or constitutions, ordinances and by-laws of perfect obligation, and generally to maintain their peace and good government.'-Angell & Ames' Corp. (11th Ed.) § 684; 2 Kent.Com. 300. The just reason is that a corporate franchise is property, incorporeal, it is true, but deemed none the less valuable in the eye of the law. Each individual member, as remarked by Sir William Blackstone, is said in such cases to be the owner of the franchise, and his privilege of membership, we may add on high authority, is, therefore, properly subject to the protection of the courts as valuable, although it may have no actual market value.-2 Black.Com. 37; State v. Georgia Medical Society, 38 Ga. 608, 95 Am.Dec. 408; Moses on Mandamus, p. 184; [Trustees of] Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629.

"The purposes for which this jurisdiction is commonly exercised is left in no doubt by the authorities. In High on Extraordinary Remedies, § 294, it is said to be now a well established rule, that 'mandamus will lie to restore to his corporate rights a member of a corporation who has been improperly disfranchised or irregularly removed from his connection with the corporation. And while the court will not inquire into the merits of the decision of corporate authorities in expelling or removing a corporator in the regular course of proceedings, yet, if the amotion has been conducted without due authority, the courts will interfere by mandamus to compel the restoration of the member to his corporate franchise.' The same rule is declared, in substance, in Angell & Ames on Corporations (11th Ed.), § 695, where it is said that this jurisdiction will be exercised for compelling corporations generally...