State v. Milwaukee Chamber of Commerce
| Decision Date | 16 December 1879 |
| Parties | THE STATE ex rel. CUPPEL v. THE MILWAUKEE CHAMBER OF COMMERCE and others |
| Court | Wisconsin Supreme Court |
[Copyrighted Material Omitted]
APPEAL from the County Court of Milwaukee County.
The board of directors of the defendant chamber of commerce having suspended the relator, a member of the chamber, from the privileges of membership, for nonpayment of a penalty imposed upon him for an alleged violation of one of the rules of the chamber, the relator sued out of the circuit court an alternative writ of mandamus, commanding the respondents to restore him to membership or show cause to the contrary.
On motion of the attorney for all the respondents, founded upon the affidavit of Langson, the secretary, and ex officio a director, the circuit court changed the place of trial to the county court, for the alleged prejudice of the circuit judge. Langson says, in the affidavit, that he makes it "on his own behalf, and on behalf and at the request of all the others, the above named respondents;" and "for himself, and for and on behalf and at the request of all the others, the above named respondents, prays that the place of trial of this, the said action, may be changed according to law."
When the case reached the county court, the relator moved that it be remanded to the circuit court, "on account of the irregular and improper removal of the said action, because no proper and legal application has been made therefor." The county court denied the motion. Thereupon the relator filed an amended relation; the respondents made return to the same; and the relator interposed an answer to such return. The respondents demurred generally to such answer, and specially to the various parts or paragraphs into which it is divided. The grounds of demurrer assigned (covering the whole pleading) are chiefly that the averments contained therein are argumentative and immaterial, and that the pleading contains matter of law alone.
The court sustained the demurrer, and gave judgment for the respondents, denying a peremptory mandamus, and dismissing the relation. The relator took this appeal from the judgment.
The history of the controversy between the relator and the chamber of commerce, out of which this action arose, as the same appears by the amended relation and the exhibits thereto attached, is substantially as follows:
The president of the chamber of commerce imposed upon the relator, a member of the chamber, a fine of five dollars for an alleged violation of one of the rules of the chamber. The relator refused to pay it. Thereupon the board of directors on or about October 30, 1878, adopted a resolution suspending him from the privileges of membership until he should pay such fine.
The relator then sued out of the circuit court an alternative writ of mandamus, commanding the chamber of commerce and its board of directors to reinstate the relator, or show cause to the contrary. It is alleged, in the relation or petition for the writ, that the relator had no notice of the proceeding against him until after the fine had been imposed; "that no charges in writing have ever been exhibited or served upon him; that he has had no trial therefor; has seen or heard no testimony against him convicting him of any offense whatever and he denies that he is guilty of any."
November 20, 1878, the board of directors rescinded the resolution suspending the relator, and restored him to the privileges of a member of the chamber. Afterwards the respondents in the alternative writ of mandamus made return thereto that they had thus restored him.
November 22, 1878, a formal charge for violating the same rule was preferred by the secretary against the relator, of which due notice was served upon him. A time was appointed for his trial before the board of directors, at which time he appeared before the board in person and by counsel. A trial was had, and witnesses on both sides were sworn, examined and cross-examined; and counsel for the relator argued the case to the board. It should be stated that the relator objected to the sufficiency of the complaint, and also insisted, as a bar to the proceedings, that the matter had once been adjudicated against him, and further, that there was no legal authority for the proceedings. The board overruled these several objections, and found the relator guilty of the offense charged. The president thereupon imposed upon him a fine of five dollars, and the board (nine members thereof being present and voting) unanimously adopted the following preamble and resolution:
The foregoing proceedings by and before the board were had November 29, 1878, and on the day following due notice in writing of such proceedings, with demand of payment of the fine, signed by the secretary, was served upon the relator. It does not appear that the fine was paid. It is a fair inference from the allegations in the relation, that it was not.
From the time of such demand the relator has been excluded from the rooms of the chamber of commerce, and from the privileges of a member thereof; and he brought this action for the purpose of compelling the respondents to restore him to those privileges.
The confused state of the record, and the great mass of exhibits attached to the amended relation, and constituting portions of it, have rendered it extremely difficult to ascertain the precise facts alleged by the relator; but it is believed that the foregoing is a correct statement of all the facts alleged by him which are material to the case.
The return or answer of the respondents to the relation, and the reply of the relator thereto, are sufficiently noticed in the opinion, and it is not necessary to state their contents here.
Judgment affirmed.
J. J. Orton, for the appellant:
1. The rule for the alleged violation of which the relator was fined, is void. (1) When a corporation is empowered by its charter to make by-laws in certain cases and for certain purposes specified, its power of legislation is limited to those cases and purposes. A. & A. on Corp., §§ 111, 325. Respondent's charter empowers it only "to make such rules and bylaws . . . as may seem proper or necessary for the good government of the corporation." But the rule in question has nothing to do with the good government of the corporation, and is therefore ultra vires. Rex v. Cutbush, 4 Burr., 2204; Rex v. Ginever, 6 Term, 735-6; Beaty v. Knowler's Lessee, 4 Peters, 152-167; Jansen v. Ostrander, 1 Cow., 686; Field on Corp., § 295. (2) By-laws must be reasonable, and not nugatory, unequal, vexatious, oppressive or manifestly detrimental to the interests of the corporation. Regina v. Saddlers' Co., 3 El. & El., 43; People ex rel. Muir v. Throop, 12 Wend., 183, 186; Grant on Corp., 80, 81. Whether they are reasonable and consistent with law, is a question solely for the court. 12 Wend., 186; 3 Pick., 462; Rex v. Spencer, 3 Burr., 1839; 10 Wend., 100; 5 Cow., 465; A. & A., §§ 347, 357, and cases there cited; Field, § 296. Counsel argued at length that the rule in question was unreasonable and oppressive. (3) The rule is void because in restraint of trade. A. & A., §§ 335-9, and cases there cited; Grant on Corp., 83, 88, and cases; Field, § 297, and cases; Dunham v. Trustees, 5 Cow., 462; Adley v. Whitstable Co., 17 Ves., 315; Adley v. Reeves, 2 M. & S., 53; King v. Steward, 8 Term, 352; Hesketh v. Braddeck, 3 Burr., 1847. (4) A by-law is void which enacts a penalty upon a penalty--as, in this case, fine and suspension. A. & A., § 363, and cases there cited; Adley v. Reeves, 2 M. & S., 60; 17 Ves., 304; Wills, 390. A by-law cannot be enforced by disfranchisement; and suspension is disfranchisement pro tanto. A. & A., §§ 362-3; 2 Kent, 298. Minor offenses ought to be punished by penalties imposed, and not by disfranchisement. 2 Potter on Corp., §§ 726, 728; 1 id., § 82, and cases there cited. An action of debt to enforce the fine was the proper remedy. Charter, sec. 12. (5) This by-law contravenes the right which the law gives every citizen to trade in all public places in the state, and is therefore void as contrary to the law of the land. Field, § 301, and cases there cited; 24 Barb., 575. (6) The power of amotion belongs to the corporation only, and cannot be delegated to the board of directors. Rex v. Richardson, 1 Burr., 539; State ex rel. Graham v. Chamber of Commerce, 20 Wis., 63, 73; Dickenson v. Chamber of Commerce, 29 id., 45. 2. The facts in evidence do not show that the relator has violated the rule in question. 3. The matter had been once adjudicated, and could not be tried again. 4. The county court had no jurisdiction of the cause, only one of the defendants having made the affidavit and petition for a change of venue. Wolcott v. Wolcott, 32 Wis., 63; Bank v. Tollman, 15 id., 92-94. 5. The charter requires the board of directors to be composed of the president, vice-presidents, secretary and nine directors; and there were only six votes for the suspension--not a majority.
N. J. Emmons and L. S. Dixon, for the respondents:
1. The venue was properly changed. R. S., sec. 2625; Bank of...
To continue reading
Request your trial