130 N.Y.S. 1024 | N.Y. Sup. Ct. | 1911
Plaintiff is a physician. Charges were preferred against him in the defendant society. He immediately resigned, and, apprehensive 'that if a trial was had expulsion would follow, he seeks to restrain the society and the defendants, its board of censors, from proceeding with the trial on the ground that he is no longer a member. On' March 1, 1910, charges were preferred against the plaintiff that in a magazine article written by him he had made false statements regarding operations which he therein claimed to have performed. On May 10, 1910, he was found guilty and suspended from membership for one year from June 1, 1910. On September thirtieth following, charges were preferred against plaintiff and his associate in a hospital that they had falsified the hospital records to prevent the discovery of the false statements so made. Plaintiff’s associate was tried, found guilty and expelled. Charges were not served on' plaintiff because he was then under suspension, but, at a meeting of the board of censors held on December twelfth, it was resolved that plaintiff should be restored to active membership so that he might be brought to trial and that the charges should be served forthwith. This resolution was received by the comitia minora, a standing committee to which all other committees are ame
The question to be decided in this case is whether or not plaintiff’s resignation became effective despite the fact that charges were pending against him. That they were pending, although not served upon him, has been held in People ex rel. Eakins v. Roosevelt, 12 Misc. Rep. 622; affd., 14 id. 531; affd., 149 N. Y. 574. There is thus involved the validity of article 6 of chapter 1 of defendant society’s bylaws in force at the time when plaintiff made his application for membership and at the time he sent in his resignation. So far as relevant it is as follows: “ Ho resignation shall be accepted from a member owing dues or assessments or under charges.”
Had the society power to enact this by-law ? It is incorporated under chapter 138 of the Laws of 1806, the substance of which is: “ Whereas, well regulated medical
In 1806 the first Constitution of the State was in force, adopted April 20, 1777, which did not prohibit the enactment of general corporation laws unless " there be reserved therein the power to alter, amend or repeal charters. In this case, as in Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, decided 1819, the charter was a contract between the corporation and the State. In this case, as in that, the consideration of the contract was benefit to the public by diffusion of knowledge, and the fact that it was established in part for educational purposes did not make it per se a public corporation so as to subject its charter to amendment at the will of the Legislature. The charter granted by the Act of 1806 .was irrepealable, and it was unamendable by the State except in the exercise of its police powers and by acts regulating generally the conduct of citizens of the State.
In 1813 an act was passed (R. L. 1813, chap. 94, vol. 2, p. 219) which provides (§ 14) : “ It shall be lawful for the respective (county medical) societies to make such . by-laws and regulations relative to the * * * expulsion of members as they * * * shall think fit and proper.” That act purports to be a reincorporation of all existing county medical societies. Section 23 reserves to the Legislature the right to alter, modify or repeal the act; in other words, to repeal charters of societies becoming rein.corporated under it (under § 2). Under the Dartmouth College case, supra, the Act of 1813 must be considered as a mere offer of incorporation to this defendant, requiring
The same reasoning applies to other acts of the Legislature conferring upon defendant society power to expel members. By section 8 of article 2 of the Membership Corporations Law “ the by-laws of any such corporation may make provisions * * * regulating the * * * expulsion of members.” By section 213 of article 2 of the same law county medical societies are given power “ to establish such rules and regulations for the government of its members as they may deem fit, provided the action of such societies receive the sanction of the state medical societies representing such county medical society and are not inconsistent with the laws of the state; ” and hy section 214 of article 2 of the same law “ Each county medical society shall have full power and authority to enforce discipline among its members and obedience to its rules and regulations, with power to expel or otherwise discipline as they may deem most advisable for the best interests of said society.”
All these acts are in the same category as the Act of 1813 because they became laws after the adoption of the Constitution of 1846, which prohibited the enactment of laws creating corporations unless such laws should reserve power to alter or repeal corporate charters granted under them. So far as appears, none of these laws have been, in the legal sense, accepted by defendant society; hence none are applicable.
Undoubtedly a corporation has power to enact by-laws without express authority, but they must not be in excess of its chartered powers. Thomp. Corp., § 998; Angell & Ames Corp., § 343. The chartered purposes are not capable of
What, then, are the powers of this corporation ? The body of the Act of 1806 incorporating defendant society confers no powers except those which are common to all corporations — to have a name and officers; to sue and be sued and have a common seal. Ho other powers are expressly granted unless they appear in the preamble, where it is recited: “ Well regulated medical societies have been found to contribute to the diffusion of true knowledge and particularly knowledge of the healing art.” “ The court should give effect to the preamble to this extent, namely, that it shows what the Legislature is intending’.” Endlich, Interp. Stat., § 62. “ In the construction and interpretation of charters in all cases of doubt the legislative intention is to control.” Thomp. Corp., § 298. Here, perforce, the intention must be gathered from the preamble, since it appears nowhere else. “ It is a fundamental rule that charters are to be construed strictly. * * * The law will indulge in no presumptions that the State intended to grant anything not expressed.” Thomp. Corp., § 299. Accordingly it has been held that the corporate purpose being “ to contribute to the diffusion of true science, and particularly the knowledge of the healing arts,” the powers of defendant society are those which tend to accomplish such objects and such objects only, People ex rel. Gray v. Medical Society of the County of Erie, 24 Barb. 570. Doubtless there are other objects inherent in the words “ medical societies ”— the power to meet and have a place and conveniences for meeting, to give lectures on medical subjects, to collect and preserve scientific data, and the like — but all these powers inherent in the words “ medical societies ” look to the relations of the members among themselves. There is a statement in article 2 of chapter 1 of defendant’s constitution that one of defendant’s objects is to “ aid in regulating the practice of medicine and surgery in this State.” That statement is merely an assumption. Ho such purpose was intended by the act of its creation.
This society .differs distinctly from a club organized for
What is the purpose of that provision of the by-laws which forbids resignation under charges ? It cannot be that it is to vindicate the fair name of the society, because it is a measure not necessary to that end; resignation under charges carries an inference to the normal mind which is sufficient for that purpose. ■ If the accused member severs his connection with the society that eliminates the obstacle
■Compulsory continuance of membership under charges is evidently something more than vindication of the society and more than its duties and purposes under its charter. The thought is that if a member be permitted to resign under such circumstances he may escape his just punishment of censure, suspension or expulsion. But defendant society is not a punitive body. When the object is manifestly punitive it is not within the powers of the corporation, because not tending to greater facility of social intercourse or to diffusion of science. The principle involved was considered in Calder Navigation Co. v. Pilling, in the English Court of Exchequer, 14 M. & W. 75. There the plaintiff company was incorporated to maintain a canal with authority “ to make such new rules and by-laws and constitutions for the good government of the said company * * * and also for the well-governing of bargemen, watermen and boatmen who shall carry goods * ■ * * upon any part of the said navigation.” Plaintiff adopted 'a by-law that the canal should not be used on Sunday and placed a chain across it on that day. The' action was in trespass for breaking the chain and entering upon plaintiff’s close. The court (Alderson, B.) said (after quoting from the charter): “ Now, looking at these words, it appears to me that all the power which the Legislature intended to give this company with respect to making laws for this navigation,- was solely to the orderly use of the navigation, that is to say, to regulate in what manner and order the navigation should be used, so as to secure to the public the greatest convenience in the use of it. The rules which they are empowered to make have nothing to do with moral and religious conduct, which are left to the general laws of the land and the laws of God. * * * So, again, they are empowered by this section to make by-laws ‘ for the well-governing of barge
So in the case at bar: Even if the defendant society should be deemed to have accepted the various provisions of the various laws mentioned which have been enacted since ISO6 and to have been empowered by them to discipline and expel, members must be disciplined or expelled in their character of members and not in their character of physicians. It is no part of the functions of the society to discipline physicians merely as such, in their moral and ethical relations to the public outside of the society or to discredit them by expulsion merely as a deterrent to other physicians, whether members of the society or not. If a member desires to withdraw, the objects of the society are as well promoted thereby as by expulsion. To refuse his resignation that he may be tried and, if found guilty of charges warranting expulsion, expelled is not an act intended to eliminate the member’s name from the roll of members; primarily, it is an act intended to aid in regulating the practice of medicine by publishing the expelled member’s disgrace and to cause such loss of practice as amounts approximately to a revocation of his license. To aid in regulating the practice of medicine is not one of the objects of the society. Prevention of fraud and quackery is not “ diffusion of science.” If, as a result of plaintiff’s trial, he should he expelled, no one will thereby, directly or indirectly, gain an iota of additional knowledge of “ true science ” or of “ the healing art.” The functions which the society has thus assumed are the punitive powers of the State, with which, under our system of government, no corporation has yet been invested. Even when medical societies were authorized to take cognizance of charges against physicians (1 R. S. [2d ed.], chap. 1, title 7, §. 3, p. 448) those charges were not tried by the society, but were prosecuted
Though the by-law be in excess of defendant’s chartered powers, is it not valid as a contract ? There can be no doubt that in the absence of some statute, rule or law to the contrary a member of a voluntary association or of a membership corporation may withdraw at any moment by saying to his associates, “ I retire,” and no acceptance is necessary. Any other construction of his rights would put it in the power of the -majority to hold him liable for dues, and, in case of a voluntary association, possibly to make him responsible for the association indebtedness during the period measured only by his life. That a resignation in such case is valid without acceptance is the law of England (Finch v. Oake, 73 L. T. Rep. [N. S.] 716), and it is the law relative to directors and officers of corporations. Chandler v. Hoag, 2 Hun, 613; affd., 63 N. Y. 624; Smith v. Danzig, 64 How. Pr. 320; Wilson v. Brentwood Hotel Co., 16 Misc. Rep. 48; Noble v. Euler, 20 App. Div. 548, 552; International Bank of St. Louis v. Faber, 86 Fed. Rep. 443. But if a member of an association enters into a contract with it concerning the duration of his membership and to the effect that it shall continue until the happening of a certain event, the case is different. Such a contract exists when, as here, the applicant for membership promises in the event of election “ to comply with' all rules, regulations and by-laws passed by the society or adopted for its government.” Voluntary associations may adopt such by-laws as they please. When adopted and consented to by any member they become binding upon him as contracts, but corporate by-laws cannot transcend corporate powers; no ultra vires by-law is any part of a member’s contract with the corporation. The distinction is pointed out in Hess v. Johnson, 41 App. Div. 465.
It is questioned whether plaintiff’s resignation took effect immediately upon its receipt by the secretary or whether it required acceptance before plaintiff ceased to be a member. The by-law provides: “All resignations shall be in writing
But even if plaintiff has not resigned, which is defendant’s own viewpoint of the law, still the society is barred from proceeding with his trial. At the time that charges were preferred he was under suspension. The by-laws being silent as to the scope of the suspension, the general rule as to its meaning and effect must be applied. As defined in the Century Dictionary, suspension is “ the temporary deprivation of office, power, prerogative or any other privilege and, in law, the temporary stop of a man’s rights.” The sentence of suspension was a judicial act; it followed a trial for an offense and it forbade him from exercising the rights and privileges of membership. It was a right of a member under charges to answer, to defend, to cross-examine and produce witnesses in his own behalf. If that right was taken from him, even temporarily, by suspension, it is manifest that he could not be tried by any standard of fairness or justice. The difficulty was evidently appreciated by the “ Comitia Minora,” who resolved to surmount it by restoring him to active mem
It is undisputed that sentence of expulsion, if pronounced, would have a seriously detrimental effect upon the plaintiff, probably resulting in loss of practice and discharge from positions which he holds in various hospitals, for which damage he has no adequate remedy at law, nor. has he, having resigned, the right of appeal to the Medical Society of the State of Hew York under section 214 of the Membership Corporations Law. The society has power to try members who have not resigned. That power is of a judicial nature, and to that extent the society is an inferior tribunal. Gregg v. Massachusetts Medical Socy., 111 Mass. 185. Being
Ordered accordingly.