The State Ex Rel. Of James J. Waring v. The Ga. Med. Soc'y

• Decision Date: 30 June 1869
• Parties: THE STATE ex rel. of JAMES J. WARING, plaintiff in error. v. THE GEORGIA MEDICAL SOCIETY, defendant in error.
• Court: Georgia Supreme Court

38 Ga. 608

THE STATE ex rel. of JAMES J. WARING, plaintiff in error. v. THE GEORGIA MEDICAL SOCIETY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Mandamus. Decided by Judge Schley. Chatham Superior Court. January Term, 1869.

James J. Waring filed in the Superior Court of Chatham county his petition for a writ of mandamus, with certain exhibits and affidavits, averring the following facts: ***** By an Act of the General Assembly of the State of Georgia, assented to December 12th, 1804, "The Georgia Medical Society" was duly incorporated for the purposes in said act mentioned, and with the powers and privileges therein specified. The principal place of business of said corporation is in the said county. On the twenty-ninth day of August, 1868, being a regular graduate of medicine, a practicing physician in the said county, and amember and corporator of the said "The Georgia Medical Society, " and *entitled by law to all the rights, privileges and franchises of a corporator of said corporation, he was served with charges and specifications. At a regular meeting of the said corporation, on the second day of September, 1868, the committee, whose names were signed to said charges and specifications, made a report of their action; at said meeting Waring excepted to said charges and specifications, as being contrary to law, and it was determined by the said corporation that the committee give the names of parties referred to in said charges and specifications.

At a subsequent meeting of the said corporation, on the 30th day of September, 1868, Waring was tried for the matters contained in said charges and specifications; he again excepted to the right of the corporation to try him as aforesaid, and the corporation found him guilty as follows:

Specification 1st, charge 1st, guilty; specification 2d, charge 1st, guilty; charge 1st, guilty; specification 1st, charge 2d, guilty; specification 2d, charge 2d, guilty; charge 2d, guilty. And not guilty as follows: Specification 3d, charge 2d, not guilty.

A vote for his expulsion from said corporation having then been defeated, it was moved and carried that he be notified by a committee appointed for that purpose, that, after due deliberation, he had been found guilty of the charges and specifications as above stated; he considers this deliberate action of the society as the gravest censure; notwithstanding this decision of the said corporation, it was further moved and carried, that he be brought before the society, informed of the decision, and censured by the president. To this last censure he objected, and left the room in which the meeting was being held, but returning in a few moments, stated that after considering the matter he would receive the censure.

At the next regular meeting of said corporation, on the seventh day of October, 1868, it was resolved that the presence of Waring being detrimental to the interest of the society he be requested to tender his resignation on or before the next regular meetingof the same, which proposition he declined; at the meeting thereafter of the said corporation, on *the 14th day of October, 1868, the following preamble and resolutions were offered and passed, viz:

"Whereas, at a meeting of the Georgia Medical Society, held on October, 7th, 1868, at the residence of Dr. J. B. Read, a resolution was passed by over two-thirds of the members present, to-wit: that the presence of Dr. J. J. Waring being detrimental to the interest of this society, he is hereby requested to tender his resignation on or before the next regular meeting of the same: And whereas, the said Dr. J. J. Waring has declined to complywith the request: And whereas, at the meeting of the Georgia Medical Society, held at the residence of Dr. R. P. Myers, on the 2d September, 1868, and again at the meeting of the Georgia Medical Society, held at the residence of Dr. Wm. Duncan, 30th September, 1868, he, the said Dr. J. J. Waring did behave discourteously to the society, and in such a manner as would render him ineligible to membership, and has rendered himself obnoxious to two-thirds of the members of the society; therefore, be it

Resolved, That at a meeting of the Georgia Medical Society, to be held 18th November, 1868, the Georgia Medical Society will, for the foregoing reasons, vote upon expelling Dr. J. J. Waring from the society: Provided, however, that Dr. J. J. Waring shall be permitted to resign at any time before that day.

Resolved, That the Secretary be ordered to hand Dr. J. J. Waring a copy of these preambles and resolutions on or before Saturday, the 17th inst."

Said preamble and resolutions, certified by the Secretary, were handed to Waring, and in reply thereto he addressed a communication to the President and members of the Georgia Medical Society, stating, among other things, that he could not resign his membership, and do voluntarily that which he had struggled through every species of mortification to prevent, because membership of the said corporation, according to the Constitution and By-laws aforesaid, was necessary to his regular standing as a physician in the city of Savannah *and elsewhere, and to the full and complete enjoyment of the benefits and rights in the pecuniary emoluments arising from the practice of his said profession, and disclaimed all intentional discourtesy to the society or its members, and protested against the irregularity and illegality of the course resolved upon as set forth in the said preamble and resolutions. Said communication was read at the meeting of the corporation held October 28th, 1868, was received, placed upon file among the records, and Waring was notified of the action taken. At the meeting of said corporation, on the said 18th day of November, 1868, Waring, by a written communication, informed the corporation that he was absent in consequence of severe indisposition, disclaimed any intentional discourtesy to the society, and protested against any proceedings upon the resolutions as aforesaid, as unlawful and unjust, which communication was spread upon the minutes; then a vote was taken and carried, that the preamble, charges and resolutions of October 14th, 1868, be confirmed; and then a vote was taken and carried upon expelling Waring from membership of said society, and he was expelled and deprived of his right, privilege and franchise of a corporator as aforesaid, by a vote of the members of said corporation.

He became a member and a corporator of said corporation in the year 1863, and paid the initiation fee established by the said by-laws, and has paid the annual taxes and various assessments required of him from time to time; the privilege and franchise of membership is of great pecuniary value to him, as it entitles him to the use of the library, composed of medical and scientific standard works and periodicals, and the surgical and anatomical specimens, the property of said corporation, and is necessary to his regular standing as a practitioner of medicine, and to the full and complete enjoyment of the benefits and rights in the pecuniary emoluments arising from the practice of his said profession; and said action of "The Georgia Medical Society" in expelling him as aforesaid from membership, and depriving him of his right and franchise as a corporator in said corporation is unconstitutional and contrary to law.

*He has distinctly and expressly demanded that "The Georgia Medical Society" should admit, restore and reinstate him to the privilege of membership, and to his right and franchise of a corporator in said corporation, from which he was illegally expelled as aforesaid, and "The Georgia Medical Society" has refused to do so; he is legally entitled to be admitted, restored and reinstated as aforesaid, and has no other specific legal remedy for the legal rights aforesaid except the writ of mandamus to compel "The Georgia Medical Society" to perform its official duty, and to restore and reinstate him to the privilege, right and franchise of a member and corporator of said corporation.

Therefore, he prayed that the State's writ of mandamus be issued, directed to "The Georgia Medical Society, " commanding it to admit, restore and reinstate him in and to his privilege, right and franchise of a member and corporator of said corporation, or in default or refusal to do so, to show for cause, some good and sufficient excuse to the contrary thereof, and why the said duty has not been performed and discharged.

The Act of Incorporation alluded to is in these words:

"An Act to incorporate the Georgia Medical Society. Whereas, Noble Wimberly Jones, President; John Irvine, Vice President; John Grimes, Secretary; Lemuel Kollock, Treasurer; John Cumming, James Ewing, Moses Sheftall, Joshua E. White, William Parker, Thomas Schley, George Jones, George Vinson Proctor, Henry Bourquin, Thomas Young, Jun., Peter Ward, William Cocke, James Glenn, and Nicholas S. Bayard, have by their petition represented, that they have associated in the city of Savannah, under the style and name of "The Georgia Medical Society, " for the purpose of lessening the fatality induced by the climate and incidental causes, and improving the science of medicine, and in order to insure and establish their said institution in a permanent and effectual manner, so that the benevolent anddesirable objects thereof may be executed with success and *advantage, have prayed the Legislature to grant than an action of incorporation.

Section 1. Be it enacted by the Senate and House of Representatives of the State of Georgia in General Assembly met, and by the authority of the same, it is hereby enacted, That the several persons hereinbefore named, and others who are, or may become members of the said society respectively, the officers and members thereof, and their successors, shall be, and are hereby declared to be a body corporate in name and deed, by the style and denomination of "The Georgia Medical...