People ex rel. Walker v. Albany Hospital , 61 Barb. 397 ( 1871 )

Learned, J.

This is a motion for a mandamus to compel an election for governors of the Albany Hospital. The institution was incorporated in 1849, and by the act of incorporation the members, at any annual meeting to be held at such time and place as the bylaws shall appoint, are to elect fifteen persons as governors. These persons, with the mayor and recorder of the city of Albany ex officio, are to constitute the board of governors, and are to hold office for one year, and until others are elected in their places. According to the by-laws passed in 1852, and as they existed on August li, 1871, when these proceedings were commenced, the election of governors was to be held on the first Monday of August in every year. But in fact no election had been held for eight or ten years and none was had on the first Monday of August, 1871. The relators are members of the corporation, and would have been entitled to vote at an election if held on the day last mentioned.

They now ask the court to require an election to be held within sixty days from the first Monday of August last, in accordance with 1 Rev. Stat., 604, § 8.

It was not disputed on the argument that a mandamus would lie to compel an election of the officers of a corporation, other than municipal, if a proper case were made (Ang. & A. on Corp.,§ 700, and seq.).

On the part of the defendants it was urged that a mandamus was a prerogative writ issuing in the discretion of the court. That discretion, however, is of course a legal discretion. If the relator can obtain relief in other ways; if his right is questionable; if there be no necessity for the writ; in such cases as these the writ will not issue.

But when it is said that a remedy is in the discretion of the court, it is not meant that the court may arbitrarily refuse it.

And even if the court should in any case be aware that the controversy before it is one which had excited much feeling, and in respect to which it is unpleasant to decide, still the court ought not to decline to act, on the excuse that the remedy asked for is discretionary.

In the present case the relators’ right to vote is not denied ; and there is no other form of remedy of which I am aware. The question then must be, have they shown a necessity for the writ and entitled themselves to it. The defendants insist that a mandamus should not issue unless a demand has been made for the specific thing, the performance of which is the object of the mandamus, and unless there has been a refusal or conduct equivalent. As authority for this they cite Rex v. Brecknock, &c. Canal Co. (3 Ad. & E., 217, 221).

In that case certain owners of land might call on the canal company to execute certain works. If the company refused for six months the owners might construct them. The relators called on the company and the company said they would execute the works. They delayed. On remonstrance they said they would proceed if indemnified. On motion for mandamus to compel them to execute the works, held, that after the company’s consent there had been no direct refusal. The statement of this case shows that it is not analogous to the present. Negotiations had passed between the parties, and it did not appear that the company were not still intending to execute the works. They hesitated only because they asked to be indemnified, and the relators had not distinctly refused to indemnify. The case of Reg. v. Bristol & Exeter Railroad Co., 7 Jur., 233, is similar in character to the last. But in the present case the defendants had a duty to perform on a certain day. It certainly cannot be necessary for the members of a corporation to request the directors to hold an election. Their duty is to hold it without request.

If, indeed, it had appeared in this case by the opposing affidavits that the omission to hold an election was only accidental, an omission which had never occurred before, then it might have been urged with much force by the defendants that their attention should have been called to their neglect so that they might remedy it voluntarily. But the opposing affidavits give as reasons for not holding the election that the first Monday of August was not a favorable time and that the affairs of the corporation were in a prosperous condition.

It is, therefore, apparent from the affidavits of the defendants that the neglect to hold an election was not accidental. Indeed, a neglect for eight or ten years could hardly be accidental, although it. may not have been from any corrupt or improper motive. A neglect so long continued and occurring in so many instances is equivalent to a refusal.

It was further urged that the relators had only two or three votes. • But of course the right of the relators to have an election ordered does not depend on the number of votes they can cast. The member of a corporation who has only one vote has a right to cast that vote; and the officers of a corporation have no right to prevent him.

Whether others are or are not satisfied with the management of the corporation does not appear and is-entirely immaterial. This is not a question as to the manner in which the governors have managed the affairs of the hospital. Its decision does not touch that point in the least. It is only a question whether the members of the corporation shall choose the governors, as the law says that they shall.

The remaining objection taken by the defendants is that since the service of the papers they have ordered an election, and that, therefore, the mandamus is unnecessary. If, on the service of the papers for this motion, the defendants had simply given a regular notice for an election, I think there would have been good reason at least for suspending the decision in this case. But more than this has been done. By the bydaws, as they existed on the first Monday of August, 1871, it is declared that every member who has contributed fifty dollars. or more by paying or securing the same, shall be entitled to one vote for each sum of fifty dollars. On August 26 a meeting of the governors was held, at which eight were present.

At that meeting the bydaw was amended by changing the day of the annual election from the first Monday of August to the first Monday of October, and it was declared that every member who had contributed fifty dollars or more, either in money, building materials or hospital supplies, should be entitled to one vote for each sum of fifty dollars, and the notice of election published is stated to be in pursuance of this resolution and amendment. The mode of publishing a notice of the annual election is also changed by this amendment to the by daws from three newspapers to¿ two. By the statute (1 Rev. Stat., 604, § 8), when an election is not held at the regular day, it is to be held in sixty days thereafter, and the persons who are to vote are those who are entitled to vote at the annual election.

If, therefore, this amendment of the by-law is valid, it changes the test of the right to vote at the election; and gives persons a right to vote who had not that right on the first Monday of August. There may be great doubt whether this can be done. Besides, by 1 Rev. Stat., 603, § 6, no amendment to a by-law relative to an election is valid until it has been published two weeks, thirty days before the election. And it would seem that this by-law cannot be published according to that statute the proper length of time prior to the appointed day.

It is also questionable whether the right to an election within sixty days of the annual day can be thus taken away by a by-law. For if this by-law is valid, it is plainly in the power of the governors, before the first Monday of October, to amend the by-law again : appointing another and more distant day for the annual election. Thus they would prevent an election from ever taking place.' It is insisted also by the relators that the meeting of August 26 was irregularly called for want of a specific notice of its object. With regard to the validity of this amendment to the by-law it is not necessary here to decide.

Enough appears to show that there is doubt about it. The only notice of election is of one in pursuance of this resolution and amendment. If the election is held under that notice, therefore, the inspectors and the voters may be concluded, and may be prevented from asserting ‘that the only proper voters are those who might have voted on the first Monday of August. That notice of an election cannot, therefore, be considered a compliance with the duty imposed on the governors,— that of giving notice of an election within sixty days after the day appointed for the annual election, in case that fails.

I see no reason, therefore, why the mandamus should not issue. The time when the election shall be held within the sixty days, will be under the control of the governors ; and the question of who shall vote at the election will remain for the future decision of the proper officers. Nothing that has been here said is intended to ' control or influence that question.

Nor is the awarding of this mandamus any indication that the management of the hospital has not been in the highest degree wise and judicious. No evidence was produced on that point, and none would have been proper. It is to be hoped that whqn the members of this .corporation shall have had an opportunity to express their wishes as to the persons who shall control, and when they shall have fairly done this, controversy as to this charity will be at an end.