49 Mich. 513 | Mich. | 1883
In my opinion this case differs in one-important and decisive respect from that of Pulford v. Fire Department, 31 Mich., 458. In the present case, while the-record is not as full and clear as it might have been made, yet it sufficiently appears that annual dues were to be paid by the members, and the relator alleges “ that he was permitted to receive all the benefits of membership until the year 1862, and up to that time had paid all dues and fees-due from him to said corporation.”
I make no reference to the proceedings that followed this date under the amendment of May 13,1863, as such were ineffectual under the decision in the Pulford Case farther than that it may fairly be presumed relator had some knowledge thereof.
The relator does not allege, nor does it appear, nor can it be inferred, that he at any time attended a meeting of the corporation, or at any time took the slightest interest therein, or paid or offered to pay any dues until June 24,1882. Thus-for upwards of nineteen years the corporation and plaintiff were, as to each other, effectually dead.
In Pulford’s Case the non-payment of dues was during the relator’s absence in the army, and on his return in 1865 he applied for restoration and offered to pay his dues.
The writ of mandamus is discretionary, and in my opinion it should not be granted in a case like the present, where no-effort is made to excuse the delay other than the relator-insisting upon strict legal right.
The action of the corporation and of -its secretary, in-passing the amendment of May, 1863, and dropping relator’s-name from the rolls thereunder, may have been arbitrary and illegal, but clearly the relator could accept such action, and there must be some period of time which a knowledge-of the facts and acquiescence therein would by all be conceded as sufficient ground upon which to deny a discretionary remedy like the one sought for in the present case.
The delay in this casehasbeen so great that no intendments can be made in favor of the relator, and as he has not. excused the delay, the writ should be denied with costs.
