The State ex rel. Hyde v. Jackson County Medical Society

• Decision Date: 27 July 1922
• Parties: THE STATE ex rel. B. CLARK HYDE, Appellant, v. JACKSON COUNTY MEDICAL SOCIETY
• Court: Missouri Supreme Court

243 S.W. 341

295 Mo. 144

THE STATE ex rel. B. CLARK HYDE, Appellant, v. JACKSON COUNTY MEDICAL SOCIETY

Supreme Court of Missouri, First Division

July 27, 1922

Transferred from Kansas City Court of Appeals.

Affirmed.

Henry S. Julian and J. LeRoy Smith for appellant.

(1) Mandamus is the proper remedy to restore appellant to his rights when he has been illegally expelled or otherwise excluded from a corporation and to restore him to all rights of membership. 26 Cyc. 443, sec. C; Albers v. Merchants Exchange, 39 Mo.App. 588; Lysaght v. Operative Stone Mason Assn., 55 Mo.App. 544; State ex rel. v Merchants Ex., 2 Mo.App. 98; Bacon on Benefit Societies secs. 109 and 442; Crocker v. Old South Society, 106 Mass. 490; Barrows v. Mass. Med. Society, 12 Cushing (Mass.) 402; Sleeper v. Franklin Lyceum, 7 R. I. 523; People v. Medical Society, 24 Barb. (N. Y.) 570; State v. Georgia Med. Society, 38 Ga. 608; People v. Mich. Med. Soc., 22 Mich. 86; State v. Chamber of Commerce, 20 Wis. 68; Society v. Commonwealth, 52 Pa. St. 125; Commonwealth v. Society, 2 Binnie, 441; Commonwealth v. Franklin Ben. Society, 10 Pa. St. 357; Evans v. Phil. Club, 50 Pa. St. 107; State v. Carteret Club, 40 N. J. L. 295; High on Extraordinary Legal Remedies (2 Ed.) secs. 287, 291; State ex rel. v. White, 82 Ind. 278. (2) Nothing the Missouri State Medical Association may have done as an unincorporated body could have any binding effect upon the corporation after it received its charter from the State in 1904. Dartmouth College v. Woodward, 4 Wheat. (U.S.) 674; State v. Ga. Med. Society, 38 Ga. 625; Fuller v. Trustees, 6 Conn. 544. (3) A membership in a corporation is a valuable franchise that the law protects against confiscation. Sibley v. Carteret Club, 40 N. J. L. 295; Green v. African Society, 1 S. & R. (Penn.) 254; Comm. v. Penn. Society, 2 S. & R. 141; Diligent Fire Co. v. Comm., 75 Pa. St. 296; Comm. v. Guardian of of Poor, 6 S. & R. 469; Comm. ex rel. v. German Society, 15 Pa. St. 251; Washington Ben. Soc. v. Bacher, 20 Pa. St. 425; People ex rel. v. Sailors Snug Harbor, 54 Barb. (N. Y.) 532; People ex rel. v. St. Francis Ben Soc., 24 How. Prac. 216. (4) Expulsion must be in conformity with law. Albers v. Merchants Exchange, 39 Mo.App. 583; State ex rel. Young v. Benefit Society, 42 Mo.App. 485; Lysaght v. Operative Stone Mason Assn., 55 Mo.App. 545; State ex rel. v. Medical Society, 38 Ga. 608; Spelling on Extraordinary Relief, sec. 1606 et seq.

Scarritt, Jones, Seddon & North for respondent.

(1) As the matter was within the sound discretion of the trial court the refusal of the writ is not reviewable here. (a) Mandamus is a discretionary writ. State ex rel. v. Bridge Co., 206 Mo. 135; State ex rel. v. Albin, 44 Mo. 346; State ex rel. v. Newman, 91 Mo. 445. Mandamus is law action, not an equity suit. 26 Cyc. 141; Bright v. Canal Co., 3 Colo.App. 170. (b) The writ may be denied on moral grounds and without regard to the technical merits of the right asserted. State ex rel. v. Martin, 195 Mo.App. 366; Tel. Co. v. State, 165 Ind. 492; State ex rel. v. Temperance Benev. Assn, 42 Mo.App. 485. (c) The refusal to issue a writ of mandamus will not be reversed on appeal unless a flagrant abuse of discretion by the trial court is clearly shown. Vincent v. Ellis, 88 N.W. 836; Tuttle v. Iron Natl. Bank, 62 N. E. (N. Y.) 761; City of Little Rock v. United States, 103 F. 418, 426; Moody v. Fleming, 4 Ga. 115; People v. Van Wyck, 157 N.Y. 495; People v. Jeroloman, 139 N.Y. 14; Chesebro v. Babcock, 59 Conn. 213; People v. Interurban St. Railroad, 177 N.Y. 296; Achuff's Appeal, 12 Pa. Sup. 573. (d) Where an order refusing a writ of mandamus does not state the grounds of decision and the writ may have been refused as a matter of discretion, the order must stand on appeal. People v. Van Wyck, 157 N.Y. 495; People v. Jeroloman, 139 N.Y. 14. (e) Appellant makes no contention that there was any abuse of discretion by the trial court, much less, such a flagrant abuse as would warrant review by this court. And there is no wonder. Could any one have the temerity to contend that a court had abused its discretion in refusing to compel a body of gentlemen to receive and retain in their social and ethical organization as a member one who had deliberately written the filthy and scurrilous letter here in question, wherein he refers to a large number of the members of the society in the vilest language? (2) The admission of relator that he wrote the letter, which is the basis of the charges against him, was alone sufficient to justify the trial court in denying the writ of mandamus. State ex rel. v. Temp. Ben. Assn., 42 Mo.App. 485; State ex rel. v. Martin, 195 Mo.App. 370. (3) The trial court was without jurisdiction to issue the writ in this case for several reasons: (a) Whatever may be the rule in other jurisdictions, it is thoroughly established in this State, that the court will not entertain a mandamus proceeding unless property rights are directly involved. Lysaght v. Assn., 55 Mo.App. 538; Crutcher v. Order of Ry. Conductors, 151 Mo.App. 622, 630; State ex rel. v. Grand Lodge, 8 Mo.App. 148, 153; Froelich v. Musicians Assn., 93 Mo.App. 383, 390. The same rule obtains in many other jurisdictions. Franklin v. Burnham, 82 N.Y.S. 882; People v. Masonic Assn., 98 Ill. 635; Wellenvoss v. Grand Lodge, 103 Ky. 415; Clark v. Wallace, 20 Ky. L. 154; White v. Brownell, 4 Abb. P. (N. S.) 191; People ex rel. v. Board of Trade, 80 Ill. 134; Sale v. Baptist Church (Inc.), 62 Iowa 26; Lawson v. Hewell, 118 Cal. 613. (b) Incorporation of society makes no difference. It has a dual existence and in discipling its members it is not acting in a corporate capacity. Sale v. Baptist Church (Inc.) 62 Iowa 26; Lone Star Lodge v. Cole, 131 S.W. 1180; Manning v. San Antonio Club, 63 Tex. 166; Hardin v. Baptist Ch. (Inc.), 51 Mich. 137. (c) Relator, by every proper test, has no property right involved in this case. He had nothing that he could sell, convey or that would pass by will or inheritance. Membership in a social society of this kind, not being organized for pecuniary gain or profit and being forbidden by statute to engage in matters of gain or pecuniary profit to the members, and where the members have the mere right to use the property of the corporation and to enjoy its advantages, is a mere privilege of membership and not a property right. State v. Odd Fellows' Grand Lodge, 8 Mo.App. 148; Crutcher v. Order, 151 Mo.App. 630; Lawson v. Hewell, 118 Cal. 613; Franklin v. Burnham, 82 N.Y.S. 882; 1 Bacon on Life & Accident Ins. (4 Ed.) sec. 70; Manning v. San Antonio Club, 63 Texas, 166; South Shore Country Club v. People, 228 Ill. 75; 5 C. J. 1357. (d) The court is without jurisdiction because relator has not exhausted his rights within the association before appealing to the court. It was admitted by relator at the trial that after his expulsion he prosecuted no appeal to the State Medical Association. Relator, as a member of the State Association, agreed to all its by-laws. One may not appeal to the courts with regard to membership in this kind of an association until he has exhausted all his rights and remedies within the association. Crutcher v. Order, 151 Mo.App. 622, 630; Correia v. Supreme Lodge, 218 Mass. 305; Screwmans Ben. Assn. v. Benson, 76 Tex. 552; Mead v. Sterling, 62 Conn. 586; McAlees v. Iron Hall, 13 A. 755; Zeliff v. Knights of Pythias, 53 N. J. L. 536; Bauer v. Knights of Pythias, 102 Ind. 262; Camp No. 6 v. Arrington, 107 Md. 319. (e) A demand for reinstatement was necessary before bringing this action. State ex rel. v. Associated Press, 159 Mo. 410; State ex rel. v. Lesueur, 136 Mo. 452, 459. (4) Respondent, though incorporated, may be subordinate to another society. There is nothing to the contention that because respondent is incorporated it cannot be correlated with or controlled in matters of qualifications for and discipline of members by another and higher body, The Missouri State Medical Association. Com. v. Heilman, 241 Pa. 374; 1 Bacon on Life & Accident Insurance (4 Ed.) sec. 92; Gorman v. O'Connor, 155 Pa. 239; Watson v. Jones, 13 Wall. 679; Chamberlain v. Lincoln, 129 Mass. 70; Osceola Tribe v. Schmidt, 57 Md. 98.

OPINION

Mandamus.

ELDER J.

This is a proceeding in mandamus seeking to compel respondent to rescind its action in expelling relator from membership in the respondent society, and to restore his name upon the roll of members. The cause comes to this court upon certification from the Kansas City Court of Appeals. By the majority opinion of that court the judgment was reversed and the cause remanded with directions to the trial court to issue the peremptory writ. Ellison, J., dissented in a separate opinion, and deeming the majority opinion in conflict with certain decisions of the St. Louis Court of Appeals and of this court, asked that the cause be certified here for final determination.

The material facts in the case, and the law applicable thereto, are thus stated in the inority opinion:

"It appears that the Kansas City Medical Library Club is made up of the members of the respondent, Jackson County Medical Society, and is a practical part of that organization. The relator, then a member of the respondent society, made application to the Library Club to become a member thereof. His application was refused, and he was so notified. He wrote a letter acknowledging the notice to one of the members of the club, with the request that it be transmitted to the club. The letter is too obscene to be printed in full.

"On account of this letter the respondent, Jackson County Medical Society, instituted proceedings to expel him from that society. It required a three-fourths majority to put him out and the vote lacked one of the requisite number.

"It seems that...