CHARLESTON.

#### State *ex rel.*Hartigan *v.*Monongalia County Medical Society *et al.*

Submitted September 16, 1924.

Decided September 30, 1924.

*Mandamus*— One *Not Duly Elected to Membership Oannot Enforce*' *Restoration of Membership by Mandamus.*

One cannot by mandamus compel a medical society to restore bjm to membership therein, when the proof shows conclusively that he was not elected to membership in the manner prescribed by the society’s by-laws, though the president and secretary of the society erroneously announced his election, and the secretary advised him that he was elected.

(Mandamus, 2d Cye. p. 344.)

Note : Parenthetical references by Editors, C. J. — Cye. Not part of syllabi.

Original Mandamus by tbe State, on relation of J. W. Hartigan, against tbe .Monongalia (bounty Medical Society and others.

*Writ refused.*

*E. M. Everly*and *C. William Cramer,*for relator.

*Glasscock & Glasscock,*for respondents.

Miller, Judge:

By bis petition for a writ of mandamus relator prays to be restored to membership in tbe Monongalia County Medical Society, and to all tbe rights, benefits, privileges, and assets accruing to members of said society.

Tbe petition alleges that be is duly qualified for membership in tbe respondent society, having been a practicing physician for more than forty years, and being a graduate of an accredited mledieal college; that in order to be eligible to membership in tbe National Medical Society, tbe applicant must be a member of tbe State Medical Society, and that membership in a county society is a prerequisite to membership in tbe state society; that in April 1923, petitioner applied for membership in tbe respondent society, and with *274his application handed the society’s secretary the required initiation fee; that a Short time thereafter he was advised by the secretary of the society that he had been elected to membership therein; that a few weeks thereafter he received from the said secretary a letter, returning to him the initiation fee paid, and advising him that at a meeting of the society, called at the petition of sixteen members thereof, a motion to rescind his election was carried. Petitioner charges that he was duly elected a member of the respondent 'society, and entitled to all the rights and privileges of membership therein; that the attempted! recission of his election was in effect expulsion from the society without notice to him and without giving him opportunity to be heard in his own behalf; that the special meeting was irregular; that the acceptance of the initiation fee and the notification of his election constituted a contract between him and the society, by the terms of which he was entitled to all the rights and benefits accorded to members therein; “that among the benefits and advantaged of medical societies accruing to the members as set forth by the society are the following: (1) 'It keeps him in touch with medical progress:’ (2) ‘It gives him a larger perspective:’ (3)’ ‘It gives him a better standing with his patrons:’ (4) ‘It gives him a better standing with business men:’.(5) ‘It gives him the support of the profession in • everything honorable;’ that the knowledge and information which a member of the said medical societies acquires from association, discussion, lectures, reports, etc., at meetings of said societiés can not be acquired to' the same extent in any other way; and that these defendants wrongfully, unjustly and without due process of law deprive this petitioner of the opportunity to acquire knowledge, skill, ability and increased professional earning powers afforded to members of said medical societies.” And it is further alleged; that by wrongfully expelling him from the society the defendants are damaging his professional reputation and standing as a physician and surgeon, and are thus decreasing his earning* power in the practice of his profession.

Respondents admit that petitioner is a qualified physician; that he made application to the society for membership; *275and that be was notified by tbe secretary that be bad been elected to membership, and afterwards advised, after tbe special meeting of May 15th, that his¡ election bad been rescinded and bis application not accepted. Bespondents aver that tbe by-laws of tbe society provide that election to membership therein shall be by four-fifths of tbe votes of tbe members present at tbe meeting; that at tbe meeting held on tbe 1st day of May, eighteen members] were present; that at least sis votes were cast against tbe admission of petitioner to membership; that tbe special meeting- of May 15th was called pursuant to- tbe by-laws, of tbe society, by tbe president, at tbe written request of sixteen members; that at tbe special meeting eighteen members were present, five constituting a quorum, and that it developed at that time that at least six members bad voted against tbe admission of petitioner into tbe society at tbe previous meeeting; that petitioner was not a subscriber to- tbe -constitution and bylaws of the society, as all members are required to be; and that, therefore, be never was a member of tbe society, and never entitled to any of tbe rights and benefits pertaining to membership therein. It is specifically alleged that petitioner was not duly elected to membership in the society, and that be was not entitled to notice of the special meeting of May 15th, because be bad not been invested with any rights in the society. .

There is no replication to- the answer and return. Petitioner simply demurred thereto. No- proof is offered by the relato-r. The respondents offer to support their answer and return, nine affidavits. One affiant say's; be did not vote on petitioner’s application for membership. Six of tbe affiants say they were present at tbe meeting- at Which petitioner’s application was voted upon, that each cast a written ballot in tbe negative, that they were surprised when tbe announcement of petitioner’s election was made, and that they did not know at tbe time bow many members bad voted in tbe negative, and were, therefore, not in a position to raise tbe question a'sf tp- tbe correctness of tbe decision of tbe president in announcing the result of tbe ballot. The secretary, by bis affidavit, swears that he did not ascertain how many votes were *276east for the admission of petitioner and how many against, and that he was misled and mistaken when he notified relator that he had been elected to membership. The president swears that when he announced the -election of petitioner to membership, he did so erroneously and without taking time to determine whether four-fifths of the membership present had voted for the admission of respondent as a member of the society.

Only such portions of the by-laws of the society as are set out in the ans¡wer and return, above mentioned, are in any way made a part of the record. The minutes of neither of the two meetings are' exhibited. But it is averred that petitioner was not elected to membership in the society in the manner provided by the by-laws thereof; and that the special meeting waa -duly and regularly held. •

Counsel for petitioner, in their briefs,, assume that he was duly elected, and that he was afterwards expelled without notice to him. All -of the authorities cited and relied on are cases where regular members of the associations were expelled, in some cases without notice. And it has been held that a -corporation or voluntary association may be compelled by mandamus to reinstate to membership one who has been expelled therefrom in an irregular manner, especially where he has been deprived thereby of some property right, though so-me courts have refused to exercise jurisdiction to control the internal affairs of voluntary associations. We do not deem it necessary to cite the cases so holding, or to make further mention -of the pro-position advanced, for the reason that the real question in issue here is whether or not the petitioner was elected to membership in the respondent society.

Relator alleges that he was elected; that he was notified of his election; and that he handed to the secretary of the society with his application the required initiation fee. He shows no other facts from which it could be' inferred that he was elected to membership. The answer and return specifically denies such election, and sets out facts in support of respondents’ position. Petitioner has not replied or called for proof; but respondents have offered evidence in proof of *277the facts set out in their answer and return in answer to the allegations of the petition. On demurrer to the answer and return, we think it sufficient to defeat petitioner’s case. The only evidence of.his election relied on by petitioner is that he was so notified by the secretary of the society; and the secretary, as well as the president and six other members of the society, swear that the secretary was in error when he advised relator of his election. As soon as the error was discovered, the society, at least sixteen members thereof, proceeded to correct the mistake made by its secretary and president, by calling* for a special meeting. Whatever may have been the procedure at the special meeting, if that is material in the determination of the questions raised, the election was found to have been irregular; and the statement of the secretary that the society voted to reconsider itte, former action and to rescind the election, in view of the facts and circumstances disclosed, did not amount to an admission that petitioner had been regularly *elected;*but that was probably the particular method pursued to correct the mistake made by the president and secretary at the former meeting.

Relator advances the proposition that the society is bound by the representation of its secretary, on the theory of agency; that it is bound by the acts of its agent acting within the scope of his authority. There is no allegation of agency, nor facts pleaded to support the present contention of counsel. Relator simply says that he was advised of his election by the secretary. What is the scope, of the authority of the secretary of a medical society? While the pleadings do not disclose whether the society is a corporation or a voluntary association, the briefs of eounsiel for both) parties proceed on the theory.that it is a voluntary association, and we assume that it is conceded that such is the fact. Such associations not being a legal entity, the authority of its officers is necessarily limited, and is generally determinable from its articles of association or constitution, and its by-laws. 5 C. J. 1349. See, also, 25 Am. & Eng. Enc. Law. 1139; 5 R. C. L. 65; 1 Mechem on Agency, secs. 187; 1389. Besides, it would be unreasonable to contend that the secretary of a society could bind the other members thereof to receive into *278the society any person he might inform of election therein. We do not think respondent could have been misled to such an extent by the secretary’s act.

We are of opinion that petitioner has. not been deprived of any vested rights by the respondent’s acts complained of. The writ prayed for will, therefore, be denied.

*Writ refused.*