People ex rel. Pulford v. Fire Department of City of Detroit

• Decision Date: 20 April 1875
• Court: Michigan Supreme Court
• Parties: The People on the relation of John Pulford v. The Fire Department of the City of Detroit

31 Mich. 458

The People on the relation of John Pulford v. The Fire Department of the City of Detroit

Supreme Court of Michigan

April 20, 1875

Heard April 9, 1875

Application for Mandamus.

Mandamus issued to restore relator as prayed; and relator entitled to costs of the application.

S Larned and F. A. Baker, for relator.

G. V N. Lothrop, for respondent.

Campbell, J. Cooley, J., and Graves, Ch. J., concurred.

OPINION

Campbell, J.:

The relator, General John Pulford, applies to be restored to his position as a member of the fire department, which the respondent claims was forfeited during the absence of relator on military duty during the war, for non-payment of yearly dues. Relator is not shown or alleged to have received any personal notice of the default in his dues, or of the proceeding to forfeit his membership. On his return after the war, in 1865, he applied for restoration and offered to pay his dues, as he did also before commencing this proceeding, but was refused.

The forfeiture relied on is by an amendment to the constitution of the department, passed on the 13th of May, 1863, whereby it was declared that any member who should fail to pay the whole of his dues which should then be in arrears, or any indebtedness to the department on or before the 1st day of August, 1863, should "from and after that day cease absolutely to be such member, and without any further action whatever of said department, or its board of trustees thereupon; and the failure to pay all dues remaining unpaid on the 1st day of June in each year thereafter, by any member, shall work the same forfeiture of membership, and in each case the secretary shall drop the names of all such delinquent persons from the roll of members."

It is apparent that before May 13th, 1863, there was no provision for forfeiting the rights of members for any such delinquency. The case does not show what former clause of the constitution was superseded by this.

To explain the occasion of this change, the respondent, by its president and secretary, states that the change of the fire system of Detroit, whereby a numerous volunteer body of firemen was replaced by a small body of paid firemen, led to a diminution of interest in the association, and many members failed to pay their annual dues; that the corporation was in debt above sixty-three thousand dollars, and its income did not pay the interest, and the course referred to was adopted to compel payment or cut off delinquents. It is not stated that this reason was adopted or expressed by any resolution of the corporation or trustees, and it is fair to assume that from lapse of time there has been some mistake as to this reason, since the annual dues were only fifty cents, and the further regulations adopted at or about the same time tended to diminish, and not to increase the list of paying members. No attempt was made or directed to bring notice home to any member of the new measure, so as to induce or enable him to pay up in time to save his rights; and the circumstances of the period, when very many members must have been absent in the field, were such as to render it certain that a considerable number must be cut off without fault or chance to save their rights. The financial reason does not seem likely to have been reliable or very plausible, and if the action is valid, it must stand on strict legal power. It has no shadow of equity.

Where a total forfeiture of important rights is asserted to have been created by proceedings of which the owner had no actual notice, the party insisting on the forfeiture has the burden of making it out in all particulars. No presumptions will be allowed in its favor. The authority must be clearly shown and strictly construed.--Westcott v. Minnesota Mining Co., 23 Mich. 145; Rex v. Richardson, 1 Burr. 540; Rex v. Liverpool, 2 Burr. 731.

If we stood upon the return alone, there are no allegations which would give color to the forfeiture. It does not appear what authority existed to change either constitution or by-laws by constructive notice, and it is not alleged what notice was required, or what was the time when the notice was dated, or on what days it was published, or what vote or other step was required to make the changes regular. We have supposed from the terms of the argument that we were expected to look into the constitution and by-laws, so far as they have been furnished, and as there is enough in the documents presented to enable us to be sure we can deal properly with the rights of the parties without any further light, we shall not find it necessary to suggest any further return or issue.

It is much to be regretted that the pecuniary interests involved are not large enough to warrant a more thorough investigation than the parties have made. The case suggests some very important inquiries, and presents some remarkable features. It is evident that many things have been done without a proper consideration or understanding.

The pamphlet containing the regulations of the corporation contains separately a constitution and by-laws. It does not contain the constitution as it was originally in force, and it appears from dates set forth in several places that some radical changes must have taken place in 1861 and 1863. It contains at the last article of the constitution, a rule for making amendments, which are to be first adopted by the trustees, at a regular board meeting, and then adopted by a two-thirds vote of members present at a department meeting, after notice of the proposed amendment and of the time of meeting shall have been published in at least one city newspaper one week next preceding the time of such meeting. A by-law requires publication of notices of meetings in two city papers.

If the amendment in question was published for the requisite time and in the proper form, it would come within the letter of the last article. The return does not show, as it ought to, the dates of publication. If legally published, the remaining questions would bear upon the right to make such an amendment for the purposes sought to be subserved. To ascertain this, it may be proper to look into the charter and the legal history of this body.

The charter was granted in 1840. It is entitled "An act to incorporate the Fire Department of the city of Detroit." Its preamble is as follows: "Whereas, the members of an association known as the Fire Department of the City of Detroit' have petitioned the legislature to grant them an act of incorporation, to enable them more effectually to accomplish the objects of their organization, and to provide means for the relief of disabled firemen and their families: Therefore (Section 1.), Be it enacted, etc., that all persons who are now, or may hereafter become members of the Fire Department of the city of Detroit, and their successors, shall be and are hereby ordained, constituted and declared to be and continue a body corporate and politic, in fact and in name, under the name and style of the Fire Department of the city of Detroit,' for the purposes recited in the above preamble." In 1861, after relator had been a member for some years, the legislature amended this by adding an additional purpose, which was in 1869 still further supplemented so as to include institutions for moral and intellectual improvement, and the relief of such homeless and destitute persons of the city of Detroit as they may select.

The primary purpose was benevolent aid to disabled firemen and their families. This has never been changed, and the organization was originally designed to entitle indigent and disabled members and their widows and orphans to relief, and "for no other purpose whatsoever" (sec. 6); and membership became valuable on this account. The other purposes have...