167 Ga. 555 | Ga. | 1928
Lead Opinion
Cases numbers 6690, 6691, and 6692, relating to and involving the same subject-matter, were argued together in this court, and will be disposed of in like manner. Number 6690 arose by petition filed by Mrs. Charles Goodman and others against Mrs. John R. Hornady and others, praying that Mrs. Hornady' be enjoined from acting or attempting to act as president of the Atlanta Woman’s Club, a corporation of Fulton County, Georgia, chartered, not for pecuniary gain, but for social and civic purposes; and that Mrs. Goodman be declared to be the duly elected and qualified president of such club. Number 6691 is a proceeding in the nature of quo warranto instituted by Mrs. Odis C. Poundstone and others against Mrs. Charles Goodman, to test the title of Mrs. Goodman to the office of president of the Atlanta Woman’s Club, alleging that Mrs. Goodman was not the legally elected president of such club, and that to the contrary Mrs. John R. Hornady was the legally elected president of such club, and seeking to have Mrs. Goodman ousted, and instead Mrs. Hornady^ declared to be elected and installed as president of the Atlanta Woman’s Club. Number 6692 is a cross-bill of exceptions involving certain rulings made by the trial judge, adverse to the contentions of the defendants in error in case number 6691.
Putting aside all questions of procedure, counsel for each of the parties in their briefs and during the argument in this court stand
We will take up first the quo warranto case. It strikes directly at the crux of the situation, and, if maintainable as a legal proposition, hits in a way to settle the controversy involved. This case was decided on the pleadings by the learned trial judge, he being of opinion that among these altercations there was to be found no issue of fact necessitating a trial by jury. The relator, Mrs. Poundstone and others, in due and ancient form, made known to the court that, as they contended, the Atlanta Woman’s Club is a corporation, chartered, not for pecuniary gain, but as a civic and social organization, owning considerable real and personal property; that they, and several hundred other ladies, were members thereof in good standing; and that the by-laws of such club provide as follows:
“Article V. Officers.
“Section 1. The officers of this club shall be a President, First and Second Yice-President, Treasurer, Assistant Treasurer, Corresponding Secretary, Recording Secretary, Assistant Recording Secretary, and Auditor, who shall be separately elected by ballot by the Club. They may be re-elected but for one year. If there is only one nomination for any office, secretary shall be instructed to cast the ballot.
“Section 2. A Nominating Committee of five members shall be*559 elected at the second meeting in February. This committee shall meet as early as possible after its election, select a chairman, and proceed to arrange a ticket for presentation to the club two weeks 'before the day appointed for the election.
“Section S. The nominee must be notified, and the consent for the use of her name obtained, before the report is made public. The ticket shall be posted in the club-house two weeks before the day appointed for the election.
“Section 4- As an aid to the Nominating Committee in making up the list, an informal vote will be received at the first and second meeting of the club after the election of this committee, when each member may put in a prepared box a signed list of names she would suggest for the different officers.
“Section 5. Nominations from the floor shall always be in order.”
Petitioners further alleged and contended as follows: Mrs. Goodman is claiming to be president of the club, and the right to exercise its powers and authorities, and perform its duties. She has not been legally elected and qualified as such president, for that, at the February, 1928, meeting of the club a nominating committee of five members was elected, who reported to the April meeting a ticket to be voted on at the May meeting in the election of officers of the club. On this ticket the name of Mrs. Charles Goodman alone appeared as nominee for the office of president. At the April meeting the names of Mrs. E. L. Turman and Mrs. W. F. Melton were from the floor put in nomination for the office of president. Afterwards, and prior to the May meeting, Mrs. Melton withdrew her name as such nominee, and the name of Mrs. Turman was never withdrawn. After the withdrawal of the name of Mrs. Melton, a large number of the members of the club who were opposed to the election of Mrs. Goodman prevailed upon Mrs. John E. Hornady, who was then vice-president, to allow her name to be placed in nomination for the office of president; and it became generally known among the members of the club that Mrs. Hornady would be nominated for the office, or that an effort would be made so to do. Mrs. W. B. Price-Smith was then the president of the club, and was a strong partisan of Mrs. Goodman; and this was generally understood among the members. A large number of those who were in favor of Mrs. Hornady, and opposed to Mrs.
The petition for leave to file this information in the nature of a quo warranto was presented to Judge John D. Humphries, of the Atlanta Circuit. The leave was granted, and an order was passed calling upon Mrs. Charles Goodman to show cause, at a time and place stated, why the prayers of the relators should not be granted.
Demurrers were filed by Mrs. Goodman, upon the grounds: (1) That the petition did not set forth a cause of action. (2) That the petition did not allege that the petitioners were either claiming the office of president or were interested therein. (3) That the petition did not allege or show'that they had any actual property interest, or pecuniary interest in the office of president, or that they would suffer any loss by the defendant staying in office, or that they would gain any material advantage if the defendant were removed from office. (4) That the petition did not allege or show any civil or property right for which petitioners could claim or show any damages if the defendant continues to hold office. (5) That the petition did not allege or show that the office of president of the Atlanta Woman’s Club carries any salary or emoluments which could be made the basis of a civil suit. (6) That the petition did not allege that petitioners would sustain any injury or damage if the defendant continued to hold the office of president of the Atlanta Woman’s Club, but it showed that the petitioners were not claiming the office itself, or any interest therein. (7) That the petition did not allege or show that they had any kind of interest other than a remote sentimental interest in the identity of the particular person who is president of the Atlanta Woman’s Club, and that such interest is that of a mere choice. The defendant filed also a special demurrer to the allegations concerning the selection of Mrs. Richardson by the members opposed to the election of Mrs. Goodman, as their representative in seeking to nominate Mrs. Hornady to the office of president at the May meeting, and to the allegations concerning the election of Mrs. Hornady as president by those members remaining in the assembly hall after the departure of Mrs. Price-Smith, upon the ground that such allegations were irrelevant and immaterial. The
Mrs. Goodman also filed her answer in which she averred as follows: The membership of the Atlanta Woman’s Club is between seven hundred and fifty and eight hundred. The name of Mrs. Turman as nominee for the office of president was withdrawn at the same meeting it was made, such withdrawal being shown by the minutes of the April meeting, which had been read and approved at the May meeting. At the May meeting there were between two hundred and seventy-five and three hundred members present, and Mrs. Price-Smith, the president, understood that a large number of partisans of Mrs. Hornady were present for the express purpose of nominating Mrs. Hornady from the floor, and knew that such nomination could not be made legally, by reason of the fact that the same would be contrary to the election laws and by-laws. It is true that Mrs. Price-Smith declined to recognize Mrs. Richardson, whose avowed and admitted purpose was to nominate Mrs. Hornady from the floor, because such nomination would have been illegal; and -if the nomination had been actually made, it would have been the duty of the president to declare it out of order. The sole purpose of Mrs. Richardson in seeking the floor at the May meeting was to place in nomination from the floor the name of Mrs. Hornady as a nominee for election as president of the club; and the act of the president, Mrs. Price-Smith, in declining to recognize Mrs. Richardson for^ that purpose was in strict accordance with the parliamentary procedure, election laws, and by-laws of the Atlanta Woman’s Club. It is denied that there was any call for a division, as charged by the relators. Respondent is the -duly elected, qualified, and installed president of the Atlanta Woman’s Club, and the act of Mrs. Price-Smith in declaring her elected was legal and proper. It was the duty of Mrs. Price-Smith, as there was only one legal nomination
It was further answered: The act of President Mrs. Price-Smith in adjourning the meeting as she did was occasioned by the disorder of the partisans of Mrs. Hornady, who would not permit continuation of the business next in order, which was the conducting of memorial exercises for members of the club who had died in the past year. The meeting was declared adjourned, in accordance with the provision in Fox’s Parliamentary Usage, which had been adopted as the guide of the Atlanta Woman’s Club, as follows: “When the prescribed hour for adjournment arrives, or when the order of exercises is completed, the president may announce that the meeting stands adjourned, or a motion to adjourn may be made and voted upon.” At the April meeting the nominations had been closed. Said parlimentary guide so adopted contained a provision as follows: “The motion to close nominations, if carried, cuts off further nominations; but, as great freedom should be allowed in the election of officers, an assembly should avoid adopting this motion as long as nominations are being made in good faith.” At the April meeting, the committee having reported its ticket containing the names of the proposed officers of the club, and for the office of president that of Mrs. Goodman alone, opportunity was duly given the members of the club to make nominations from the floor; and the names of Mrs. Hornady, Mrs. Melton, and Mrs. Turman were put in nomination for the office of president. Mrs. Hornady had telegraphed her refusal to permit her name to be proposed; and it was withdrawn. Mrs. Turman’s name was then withdrawn; and a motion was made and carried unanimously that nominations close. The names on the ticket presented by the nominating committee, and that of Mrs. Melton,
Further: Notwithstanding the provision of section 1 of article 5 of the by-laws, that “If there is only one nomination for any office, the secretary shall be instructed to cast the ballot,” and notwithstanding there was only one nomination for each office, an attempt was made by some of the supporters of Mrs. Hornady to nominate from the floor. The presiding chairman did not and could not recognize such proceedings as regular and lawful; and thereupon the Hornady supporters created great disorder in the meeting, and were so noisy and boisterous that it was impossible for the club to proceed with the next order of business. The president, after vainly attempting to obtain order, declared the meeting adjourned, and she and the other officers left the meeting. Respondent’s election was in accordance with the by-laws and election laws of 1924, and with the course pursued under the unbroken custom of the club since its organization more than thirty years ago. The election laws of the club, adopted in 1924, were as follows:
“Rules Governing the Election oe Oeeicers.
“1. All nominations must be posted for two weeks. No votes will be counted except for nominee thus posted.
“2. Only members who have paid dues for the current half-year (beginning March 15th) may vote. No proxies may vote.
“3. The Australian ballot shall be used.
“4. The list of qualified voters must be closed before the balloting begins.
*565 “5. The club must be called to order to receive a report from the treasurer, stating the exact number of qualified voters.
“6. The president shall appoint the chairman of tellers, but each candidate may name one assistant teller. These nominations must be made in writing to the president one week before the election. If less than five nominations are made, the president may appoint assistant tellers up to the number of five.
“7. The ballot-box shall be open from 12 noon to 5:30 P. M.
“8. At the close of the election the tellers shall count the votes and seal the box of ballots. All tellers must remain until the final counting of the ballots and sealing of the ballot-box.
“9. An adjourned meeting of the club will be held the following morning at ten o’clock, to receive the report of the election.”
Further: The purpose of Mrs. Richardson and the other supporters of Mrs. Hornady at the May meeting was the nominating of Mrs. Hornady from the floor; the parliamentary ruling of the presiding officer, Mrs. Price-Smith, prevented the nomination of Mrs. Hornady from the floor; and this ruling was correct as a matter of parliamentary law, under the election laws, constitution, and by-laws of the Atlanta Woman’s Club, and under the official book regulating the parliamentary practice of the club. In respondent’s opinion, there is no material issue of fact between the parties hereto; the question which must be decided ultimately is one of law, to wit, whether or not nominations from the floor were in order at the May meeting, 1928; and any other questions of law and fact are purely incidental to this question. She prays that she be decreed to be the legally elected president of the Atlanta Woman’s Club.
The defendant’s demurrers, plea in abatement, and motion to dismiss were overruled, and she excepted pendente lite. Upon the coming in of the answer of the defendant, by order of the court the plaintiffs and others made replication containing, among others, the following averments: The excerpt from the book of parliamentary usage quoted in the defendant’s answer, relative to adjournment, is correct, but this provision had no application to the situation existing at the time Mrs. Price-Smith attempted to declare the May meeting adjourned. No fixed hour for adjournment h3.fl arrived, and the business of the meeting had not been completed.., The quoted excerpt from this book on parliamentary law,
Further: The so-called election laws of 1924 were adopted only for the particular election then pending, and were not adopted as
In the opinion of the presiding judge there was no controlling issue of fact which should be submitted to a jury; and, upon consideration, his judgment was duly entered that Mrs. Charles Goodman was the duly elected president of the Atlanta Woman’s Club.
In McCarthy v. McKinney, 137 Ga. 292 (73 S. E. 394), the
“The public are interested in the question as to who should exer
There was no error in overruling the special demurrers of the defendant, Mrs. Goodman. The particular allegations attacked by these special demurrers were not irrelevant or immaterial. They were a part of the history of the case.
The court did not err in overruling the defendant’s plea in. abatement and motion to dismiss the quo warranto proceeding. In the equity case Mrs. Goodman and others sought to enjoin Mrs. Hornady from interfering with Mrs. Goodman in her administration as president of the Atlanta Woman’s Club. At the first opportunity Mrs. Hornady demurred to ,such petition upon the ground, among others, that such equitable petition was not maintainablé to try by injunction the title to such office; that the petition, stripped of the garments thrown around it in an effort to give the court jurisdiction, disclosed a case, no matter from what point seen, which was nothing more or less than an effort to test the question of who was rightfully elected president of the Atlanta Woman’s Club. The authorities axe in accord that all dressings should be removed; and when so laid off, if it appears that
The Atlanta Woman’s Club, being a civic and social organization chartered for purely benevolent, charitable, social and civic purposes, although incidentally owning valuable properties from which revenue is obtained, is necessarily a very democratic body. Its members meet upon a level, each enjoys all the privileges, and is entitled to the same benefits, social and otherwise, afforded any other member. All members are eligible to office. When the club adopted by-laws for its government in the matter of the election of its officers, as a conclusion of the whole matter it was provided: (Article 5, section 5). “Nominations from the .floor shall always be in order.” This unambiguous declaration is contained in one single sentence composed of words of every-day use and clear meaning. The subject of this declaration is the matter of “nominations” for office, when and how they are “in order,”
Article 11, section 1, of the by-laws of the Atlanta Woman’s Club, provides: “Amendments. The by-laws of this club may be amended at any regular meeting by two-thirds vote of the members present, the amendment having been proposed in writing and signed by five members of the club at a previous regular club meeting, and notice of such change having been mailed to each member of the club; provided, that before such notice is sent 'out, it must be authorized by a majority vote of the Executive Board.” What is the force and effect of a valid existing by-law, regularly adopted, relating to the internal management of the affairs of a private corporation, whether organized for gain or for civic and social purposes ? The Messrs. Thompson, in the third edition of their most admirable work on corporations, in each case citing authority to sustain the text, say: “§ 1075. Office and purpose of by-laws. The office of a by-law is to perform the functions of an ever-present master. The function of a by-law is to prescribe the rights and duties of the members with reference to the internal government
In Harrington v. Workingmen's Benevolent Association, 70 Ga. 340, the by-laws of a benevolent association provided that a member in good standing should be entitled to six dollars per week during the period of his sickness, not exceeding eight weeks; that no claim should be considered before eight days from the date of such sickness, and no benefits should be paid outside of Savannah; that sickness from drunkenness or debauchery should not entitle a member to any benefits; and that no' claim for benefit will be received or acted on, except through the sick committee and furnishing a doctor’s certificate. It was held, that such by-laws were not contrary to law, and a member could only avail himself of the rights to be enjoyed in the way and in the manner provided by such rule, a prerequisite to recovering benefits being the furnishing of a doctor’s certificate to the sick committee; and the mere exhibition of such a certificate to a member of that committee was insufficient. In Union Fraternal League v. Johnston, 124 Ga. 902 (53 S. E. 241), it was held: “A member of a benefit society must, in applying for benefits under its by-laws, follow the procedure therein prescribed.” So it must be seen that a lawful by
But it is said that the club had adopted rules governing the conduct of the election of officers; and certain rules or so-called “election laws,” adopted in 1924, are said to be in conflict with and to prevail over the by-law in question. It appears that in the thirty or more years of the existence of this club before the election in question, there had been but one time when there was more than one candidate for an office. This was in 1924, when the club adopted certain rules governing elections. 0 These election rules are set out in extenso in the answer of Mrs. Goodman. It appears beyond dispute, from the pleadings in this case and the evidence in the equity case, that these so-called “election laws” of 1924 were presented to and adopted at the meeting of the club held on April 28, 1924. No effort was made to comply with article 11, section 1, of the by-laws, providing how the by-laws of the club may be amended, or new by-laws adopted. They were proposed as mere “rules,” and were so adopted on mere “motion.” “It is a general rule that societies and clubs have the right to alter, amend, or repeal their laws, or to enact others consistent with the purpose for which they are organized; provided, the change or amendment be adopted in accordance with the mode prescribed therefor.” 25 R. C. L. 50. “A by-law is a permanent rule of action, in accordance with which the corporate affairs are to be conducted. A by-law differs from a resolution, in that a resolution applies to a single act of the corportion, while a by-law is a permanent and continuing rule which is to be applied on all future occasions. 9 C. J. 1112 (e), and eit. Whether any given rule of action becomes a by-law or a resolution depends upon the solemnity with which it is passed. 7 Barb. (N. Y.) 508, 540; State ex rel. Krebs v. Hoctor, 83 Neb. 690 (120 N. W. 199). The Atlanta Woman's Club may adopt a by-law only upon compliance with article 11, section 1, of the by-laws. Any regular meeting of the club may adopt a resolution or a motion immediately upon presentation, by mere viva voce majority vote of a quorum.
It is further contended that the nomination of Mrs. Hornady was not in order at the time of the election, for that at the previous April meeting a motion had been made and carried to “close the nominations,” and that a certain book on parliamentary usage
It is further contended that the method of nominating and electing officers pursued at the election in question was not only in accordance with the by-laws and the election laws of 1924, but was the same course which had been pursued under the unbroken custom of the club since its organization, more than thirty years ago. There had been no previous contest for office in the club, except in 1924. Certainly custom can not be established by one act only, or a certain course pursued one time only. The course pursued in 1924 is not even a precedent; for it is not shown that in 1924 any effort was made to nominate from the floor on the day of the election.
At the May meeting, 1928, the minutes of the previous April meeting were read and approved. This did not constitute a legislative act. It was a mere acknowledgment that the secretary had correctly recorded that which occurred at the April meeting.
In view of the peculiar circumstances of the election which brings about these cases, we'have concluded that it is proper for this court to exercise the broad power conferred on us by the Code of 1910, § 6103, par. 2, and to direct that upon the filing of the remittitur,from this court in the court below an order therein be promptly made, ousting the defendant in error, Mrs. Charles Goodman, from the presidency of the Atlanta Woman’s Club, and directing that the present acting secretary of said club at once assume the presidency thereof, with all its powers, prerogatives, and duties, and that such secretary be directed to call at once an election for the office of president of said club, the same to be participated in by all members lawfully entitled so to do, to be held at the usual place of holding such elections by said club, and to be at such appropriate time in the near future as may seem reasonable, and be fixed in such order of the presiding judge of the court below, and to be conducted in conformity with the laws of said club as construed by this court, and such other temporary rules and regulations for holding and ascertaining and declaring the result of such election as may be prescribed in such order; all members of said club in good standing to have written or printed notice of the time
Judgment in Hornady v. Goodman (6690) reversed. Judgment in Poundstone v. Goodman (6691) reversed, with direction, on the main bill of exceptions j and affirmed on the cross-bill (6692).
Dissenting Opinion
dissenting. These cases were argued together. Counsel for each of the parties in the equity case, as well as in the quowarranto case, and the cross-bill of the same, agree that the controlling question is, who was the duly elected president of the Atlanta Woman’s Club at the annual May meeting? By-laws throwing light on the questions involved in this case are as follows:
Article 5, section 1. The officers of this club shall be a President, First and Second Vice-President, Treasurer, Assistant Treasurer, Corresponding Secretary, Recording Secretary,' Assistant Recording Secretary, and Auditor, who shall be separately elected by ballot of the club. They may be re-elected but for one year. If there is only one nomination for any office, secretary shall be instructed to cast the ballot.
Section 2. A nominating committee of five members shall be elected at the second meeting in February. This committee shall meet as early as possible after its election, select a chairman, and proceed to arrange a ticket for presentation to the club two weeks before the day appointed for the election.
Section 3. The nominee must be notified, and the consent for the use of her name obtained, before the report is made public. The ticket shall be posted in the club-house two weeks before the day appointed for the election.
Section 4. As an aid to the nominating committee in making up the list, an informal vote will be received at the first and second
Section 5. Nominations from the floor shall always be in order.
The writer will discuss first the quo-warranto case of Pound-stone v. Goodman. The court did not err in overruling the general and special demurrers filed by the defendant, and in overruling the plea in abatement. The writ of quo warranto was the proper proceeding to raise the question, who was elected president of the Atlanta Woman’s Club. McCarthy v. McKinney, 137 Ga. 292; Hussey v. Gallagher, 61 Ga. 86; Harris v. Pounds, 64 Ga. 121; Stanford v. Lynch, 147 Ga. 519; Code, § 5451. The Atlanta Woman’s Club is a corporation chartered under the laws of Georgia. As such it has the right to pass such by-laws and rules for the government of its internal affairs, as well as the election of its president, as it sees fit, not inconsistent with its charter, and the laws .of the State. Code, § 2216. Corporations, as well as legislative bodies, have the right to adopt rules governing their meetings or proceedings; this applies to the Atlanta Woman’s Club. It appears that “Fox’s Parliamentary Usage” had been regularly adopted by this club as its parliamentary guide. This guide provides: “To close nominations. The motion to close nominations, if carried, cuts off further nominations.” At the April meeting the record shows that this motion was made and carried, and when the minutes (if it had been a legislative body it would have been called the Journal) of the April meeting were read at the May meeting they were confirmed; and so far as the record shows, they were confirmed without any motion being made to rescind or modify that portion of the minutes closing nominations. This was tantamount to again closing nominations.
It is insisted, however, that section 5 of the by-laws, “Nominations from the floor shall always be in order,” gave to Mrs. Richardson the right at the May meeting to nominate Mrs. Hornady from the floor. Section 5 must be construed in connection with sections, 1, 2, 3, and 4 of the by-laws, and also with reference to the parliamentary guide adopted. It was evidently the intention of the Atlanta Woman’s Club, in the adoption of by-law 5, providing that nominations from the floor should always be in order, to reserve to the members of the club the right to make
Among the definitions of the word “always” by Webster, are “Constantly during a certain period, or regularly at stated intervals;” and by giving the word “always” this construction there is no conflict between these by-laws and rules. In 1 Words and Phrases reference is made to an act requiring all railroad companies to keep engineer, fireman, or some one else “always on the lookout” ahead when the train is in motion, and to a ruling that such act does not require that the railroad company should keep somebody on the locomotive throughout the entire trip “always on the lookout,” but it is sufficient if the precaution was being observed when the accident occurred. Louisville & Nashville R. Co. v. Stone, 54 Tenn. 468-471. When the club convened at the May meeting, after the nominations had been closed by its action, and when only the name of Mrs. Goodman was before the body for president, the second paragraph of section 1 of article 5 of the by-laws, that “If there is only one nomination for any office, secretary shall be instructed to cast the ballot,” applied, and it was proper for the presiding officer to direct the secretary to cast the ballot for Mrs. Goodman. This paragraph says the secretary “shall” cast the ballot. The court was therefore right in holding that at the May meeting, 1928, Mrs. Price-Smith as president was within her right and authority when she directed the secretary to cast the ballot of the club for Mrs. Goodman, and that Mrs. Goodman was the duly and legally elected president of the Atlanta Woman’s Club.
As to the equity case (No. 6690), the court did not err in overruling the demurrers of the "defendant. There were other issues
Concurrence Opinion
I concur in tbe conclusion reached by Judge Stark, but do not agree to bis view that tbe confirming of tbe minutes of tbe April meeting was tantamount to again closing tbe nominations. In my opinion this merely confirmed what took place at tbe April meeting of tbe club.
