51 N.Y.S. 420 | N.Y. App. Div. | 1898
This is an appeal from an order granting to the relator a peremptory mandamus commanding the defendant to rescind a resolution of its board of directors which revoked the relat- or’s appointment as one of its professors of surgery, and as a member of its faculty, and further commanding the defendant to restore the relator to these positions, and to all the rights, franchises, and privileges lawfully incident thereto. The relator was removed from the positions in question, by a majority vote of the board of directors; upon the 28th day of January, 1898. Prior to the latter date, charges had been preferred against him by the faculty of the college. The relator had been notified that these charges would be considered by the board on the 31st day of January, 1898.
The first question depends upon the construction of the by-laws. These by-laws formulated a carefully devised and symmetrical system upon the subject of appointments and removals. Nominations for professors are, in the first instance, to be made by the faculty. These nominations can only be rejected by a three-fourths affirmative vote of the entire board of directors. If not so rejected, the board appoints the nominated professor. The second subdivision of the twelfth article then provides that professors shall hold office during the pleasure of the board of directors. This subdivision is entitled “Appointments.” We find in this second subdivision a different regulation with regard to the tenure of “instructors.” The provision on that head is as follows:
“The term of office of an instructor shall expire on June-of each year, unless reappointed by the board of directors.”
Then follows a third subdivision, entitled “Removals,” which reads as follows:
“The chair of any professor may be declared vacant by a three-fourths vote c£ the board of directors, upon at least two weeks’ notice, together with a copy of the charges having been given to said professor of the time of which such action is to be taken, when said professor may have the opportunity of being hea.rd in liis own behalf.”
The learned judge below held that the provision of the second subdivision, that professors should hold office during the pleasure of the board of directors, is qualified by this third subdivision, and that thus the power of the board is limited to removal under the latter subdivision; in other words, that the board could only express its pleasure under the second subdivision by acting upon the charges in the manner provided in the third. We are unable to concur in this view. It creates an incongruity where none is apparent. » By a forced construction, and apparently without reason, it deprives the language used in the second subdivision of its natural import. The system contemplated by the two subdivisions is
As to the second point, the record shows that when the board acted there were no charges against the relator actually pending before it. The learned judge below has found that these charges, though formally returned to the faculty, unacted upon, were, in substance, pending before the board when the directors removed the relator, under the second subdivision of the twelfth article of the by-laws. It was his opinion that, although the directors thus technically removed the relator at their pleasure, they essentially removed him upon the charges. There is not a scintilla of direct •evidence to support this conclusion. It rests entirely upon the circumstances attendant Upon the action of the board; in other words, upon inferences drawn from the facts established by the direct •evidence. The direct evidence proved that the charges were, at the request of the faculty, returned to the latter body, unacted upon, and that almost immediately thereafter the directors removed the relator under the second subdivision of the twelfth article; that is, at their pleasure. We think the inference drawn from these facts by the learned judge below was unwarranted,-—at least, upon the present application. It was not competent, upon a motion for a peremptory mandamus, to go below the surface of the facts presented, and draw debatable inferences therefrom. Such a writ can only be granted-upon questions of law; never where there is a dispute as to the material facts. The undisputed facts here are, upon their face, plainly conclusive against the relator. The dispute arises only upon the just inferences to be drawn from these facts. The court went behind the direct evidence, and attached to it a force and meaning which were not apparent upon its face. It was weighed in the light of antecedent and surrounding circumstances, and when thus weighed the inference of bad faith on the part of the directors was drawn therefrom. The difficulty at this point is obvious. To say the least, two inferences might have been drawn from the evidence as thus weighed. A jury, for instance, might have inferred, as did the learned judge, that what transpired was a subterfuge to enable the directors to effect the same purpose as the removal of the relator upon the charges. Such a jury might, however, have drawn the opposite inference from precisely the same evidence. They might have inferred therefrom that the board acted in good faith, that it honestly believed that the faculty no longer
It follows that the relator was not entitled to the peremptory mandamus which was awarded him. Nor was he entitled to an alternative writ, even for the purpose of settling the question of good or bad faith, according to the inferences which a jury might draw from all the facts. Mandamus, in our judgment, was not the relator’s proper remedy. ' The facts stated in the moving papers failed to show that he had not. an adequate remedy at law. His application, so far as the remedy by mandamus is concerned, seems to be based upon the notion that the position of a professor in the defendant’s college is in the nature of an office, and that it is the province of a mandamus to rein-duct him into that office, and keep him there. This is an erroneous view, both of the relator’s true position, and of the office of the writ. The college is a private corporation, and its professors and instructors are simply professional men appointed to serve the institution in a particular manner. They either hold contract or honorary relations with the college; but which,nthe papers here do not clearly disclose. If the former, the relator can sue for his salary, or for any other emolument to which he is entitled. If, however, the relation is honorary, its continuance or discontinuance must be mutually optional. A different rule applies where one is deprived of membership in a corporation. There he can be restored to membership, if improperly expelled. This was done in People v. New York Ben. Soc., 3 Hun, 361. It is also the proper remedy to compel a medical society to admit to membership one who is properly entitled thereto. People v. Erie Medical Soc., 32 N. Y. 187. The only case in this state, to which we have been referred, extending this principle to college professors in medical colleges, is People v. Albany Medical College, 62 How. Prac. 222. This case, however, was reversed upon appeal (26 Hun, 348), and the reversal was subsequently affirmed in the court of appeals (89 N. Y. 635). It is true that the reversal was upon the merits, and that nothing was said above as to the remedy. Even at special term, however, the question of the remedy was not fully considered. Judge Westbrook merely said that he did not deem it necessary to discuss the remedy by mandamus, adding a few words, to the effect that
Upon both points, therefore, the order should be reversed, and the application for a mandamus denied, with $50 costs, and disbursements of this appeal. All concur.