CHAPTER XVI. SECTION AMOTION OF OFFICERS. SECTION 819. And by a majority vote. 820. Necessity of notice and a judicial inquiry. 821. Exception in the case of continued desertion and non-residence. 822. Conduct of the trial: the evidence. 823. Assembling the meeting for the trial: notifying the members. 824. Instances under the foregoing rule. 825. Review of proceedings by certiorari. 826. Extent of relief in equity. 827. Illustration: dismissal of schoolmaster under English public school act of 1868. 828. Where the power to remove is discretionary in the due exercise of the powers of the trust SECTION 837. Sufficient if made by proper officer until falsified. 838. Whether the return should be under corporate seal. 839. Variance between writ and return. SECTION 840. Other points of practice in proceedings by mandamus. 841. Principles upon which the judicial courts review sentence of amotion. § 799. Distinction between Amotion and Disfranchisement..- "In a corporation," says Daly, F. J., "there is a distinction between what is called amotion, or the right to remove an officer, which is a power inherent in every corporation, and disfranchisement. The former may be exercised without interfering with the franchise,- as the officer, when removed, still continues a member; but disfranchisement is an actual expulsion of the member from the body and the taking away of his franchise, which cannot be done unless the power is given by the charter creating the corporation; or the member has been guilty of crime, a conviction of which would work a forfeiture of all civil rights, including the corporate franchise, or has committed acts which tend to the destruction of the corporation, such as the defacing of its charter, the obliteration or alteration of its records, or other acts tending to impair or destroy its title to its rights or privileges; in which case, the expulsion of the member is but the exercise of a power incident to the right of selfpreservation." 1 § 800. Observations of Mr. Willcock on this Question.- Although in the leading case of Bagg,2 much was said about amotion, and the grievance of Bagg was that he had been disfranchised as one of the twelve burgesses of Plymouth, Mr. Willcock, in his treatise on corporations, which is regarded as a good work, defines amotion as applicable only to officers, and says that it causes a cessation of the particular offices from which they are amoved, but in no manner affects their right to the freedom of the munic 1 White v. Brownell, 4 Abb. Pr. (N. S.) (N. Y.) 162, 192; citing Evans v. Philadelphia Club, 50 Pa. St. 107; Baggs' Case, 11 Co. Rep. 93; Earle's Case, Carth. 173; Com. v. St. Patrick's Benevolent Society, 2 Binn. (Pa.) 441; s. c. 4 Am. Dec. 453; Fuller v. Trustees, 6 Conn. 532; People v. Medical Society, 24 Barb. (N. Y.) 570. 2 11 Co. Rep. 93; stated at length, post, §§ 851, 855. ipality; whilst disfranchisement is applicable only to the freedom, and cuts off the corporator from all rights and privileges of the corporation. It appears, according to that authority, that there is not an incidental right in corporations to disfranchise their members, but that it must be claimed by prescription or express grant of the charter.1 Mr. Willcock then makes the following among other observations upon that celebrated case: "At the time when James Bagg's case was before the court, their attention had been rarely attracted to the consideration of corporate causes, and the distinction between the right to the offices and the right to the freedom of a municipality had been little considered. The particular case was of amotion from office; the arguments were in general more applicable to disfranchisement, but there is a material difference in principle. The enjoyment of office is not for the private benefit of the corporator, but an honorable distinction which he holds for the welfare of the corporation; and therefore, though it be an office of a freehold nature, it is entirely conditional. But the franchise of a freeman is wholly for his own benefit, and a private right; a right in the municipality similar to that of a natural subject in the State, of which he ought not to be deprived for any minor offense against his corporate fealty, any more than that for which, as a subject, he ought to be deprived of his franchise as a liegeman. For this reason, all minor corporate offenses, such as improper behavior to his fellow corporators, where not punishable by the general law of the land, as well as violations of his corporate duties, ought to be punished by penalties imposed by the ordinances of the municipality, and not by disfranchisement. But such offenses against the general law as occasion a forfeiture of all civil rights, import in themselves a forfeiture of the corporate franchise; and offenses against the corporation which tend to its destruction, such as defacing the charters, altering the corporate records so as to destroy the evidence of their title to privileges, or that of the title of his fellow corporators to their franchises, are of course causes of disfranchisement." 2 1 Willcock Corp. 270. 2 Willcock Corp. 270; quoted with approval by Woodward, C. J., in Evans v. Philadelphia Club, 50 Pa. St. 107, 113; and it was said by the learned judge that these observations are equally applicable to private corporations. This observation is perhaps § 801. These Observations Applicable to Corporations other than Municipal. These observations," said Woodward, C. J., quoting the language of Mr. Willcock in the preceding section, "relate to municipal corporations; but why are they not equally applicable to private corporations? The interest or 'freedom' which a member has in a private corporation is as a rule a 'franchise' as that which any of the burgesses mentioned in Bagg's Case had in the borough of Plymouth, and may often be a much more valuable franchise. Where it has been obtained by the payment of a pecuniary consideration, and property is held in connection with it, it is a vested estate, and certainly ought not to be sacrificed on account of minor offenses, which would not be permitted to forfeit individual interests in a municipal corporation. And if a power to disfranchise in a municipal corporation does not exist unless expressly granted, it is very safe to conclude that it is not inherent in a private corporation, and must have an express grant to support it.1 § 802. Power of Amotion Inherent in Corporations. By the principles of the common law, every corporation has an implied power, incident to its existence as a corporation, and independent of charter provisions, to remove an officer for cause.2 true, with the exception of private corporations having a joint stock. 1 Evans v. Philadelphia Club, 50 Pa. St. 107, 113. 2 Fawcett v. Charles, 13 Wend. (N. Y.) 473; State v. Trustees of Vincennes University, 5 Ind. 77; Lord Bruce's Case, 2 Strange, 820; Rex v. Doncaster, Barnard. 264; Rex v. Richardson, 1 Burr. 517, 539; People v. Higgins, 15 Ill. 110; Adamantine Brick Co. v. Woodruff, 4 MacArthur (D. C.), 318; Burr v. McDonald, 3 Gratt. (Va.) 215; Auburn Academy v. Strong, Hopk. (N. Y.) 278; cases cited, post, § 847. It was said in one case, in the King's Bench, that there are authorities (citing 11 Coke, 99; 1 Roll. Rep. 224; Palm, 451; Stiles, 477), that the power of amotion is not inherent in a corporation. Such a power must exist by charter or prescription in order to its exercise. Rex v. Mayor of Doncaster, 2 Ld. Raym. 1564, 1566. But the contrary is now established as stated in the text. Where a corporation time out of mind had power to remove an alderman for a reasonable cause, it was held that, though the corporation had taken a new charter wherein no such power was expressly given, yet the power still remained; since the new charter did not merge or extinguish any of the ancient privileges, but the corporation might use them as before. Haddock's Case, Sir T. Raym. 435, 439. "The power of amotion for adequate cause, is to be an inherent incident of all corporations, whether municipal or private, except, perhaps, such as are literary or eleemosynary; but the exercise of this power does not affect the private rights of the corporator in the franchise." Statement of Doctrine by Woodward, C. J., at nisi prius, in Evans v. Philadelphia Club, 50 Pa. St. 107, 117, affirmed by an equal division Speaking with reference to English boroughs, which are a species of municipal corporation, it has been held that, although the charter does not in terms authorize the removal of an officer, yet the power of removal is implied; it is incidental for self-preservation. It follows that a by-law authorizing the removal of officers for cause may be good, although no power of amotion is expressly given by the charter, or is possessed by prescription.' On the other hand, a by-law restricting the discretionary power of removing a master or usher of a grammar school vested in the governors, as given by the charter has been held void. The directors of a national bank have power to remove the president, both under the act of Congress relative to national banks, and under the articles of association, where such articles give express authority to remove; and it makes no difference that the bank has never adopted any by-laws.* § 803. Power Resides in Corporation alone, not in Judicial Courts. This power belongs to the corporation alone; the courts have no jurisdiction to order such removal. As the courts have no jurisdiction to remove an officer of a corporation or to enjoin him from acting as an officer, a portion of a decree depriving such an officer of his salary on the ground of having violated the by-laws, no fraud being shown, was reversed as erroneous. In New York a statute formerly existed, author Ibid., 127. Y.) 195; s. c. 18 Abb. Pr. (N. Y.) of the Supreme Court. 1 Lord Bruce's Case, 2 Str. 819; Rex v. Richardson, 1 Burr. 517, 538; Rex v. Lyme Regis, Doug. 149. 2 Rex v. Richardson, 1 Burr. 517, 539; s. c. 2 Ld. Ken. 85. 3 Reg. v. Governors of Darlington School, 6 Q. B. 682. 4 Taylor v. Hutton, 43 Barb. (N. 16. 5 Neall v. Hill, 16 Cal. 145. 12 Rev. Stat. N. Y. (1st ed.), 462. |