, 1873-07-23
hut 1T Must do 1T In AC-
cOrtln1lcc with Law.
, in'This Case No Notice Vas Giyon, No Proof
. Takon, and tho Individual ID.
- Mombors Hot Tried. .'
Therefore the Trial is Worthless, and the
Demurrer Sustained.


whom tho following decision was ronderod, Ems
tanning petitioners (Eriuos) domurror to do
fondant's answer to his bill
On tho 9th Of April last, tho petitioner tllod
hiH petition In this Court praying for writ OF
mandanus against tho defendant, to reatoro him
to his franchises as member Of tho Board Of
Trade. Tho petition Is very voluminous, and
seta out tho history OF tho plaintiffs con-
'neotlon with the Board Of Trade, and tho
manner OF his expulsion thorofrom. with
tho attendant facts and circumstances.
Upon tho 21st OF April tho dofcndant nled its
answer to tho petition, sosting up at great longth
tho various facts upon which the defendant ro-
lies for ita dofonso. To this answot d demurrer
has beon filed by the plaintiff, aud tho question
now to be determined by tho Court ia, whether,
admitting tho answer to be true, 1t conHtitutcs a
good dofonse in aw to tho application for tho writ
Of mandamuR. -,
II was suggested in argument, but not urged,
that tho notion in its present form was not prop
orly brought. BY tho uniform PRACTICE at COM
mon law, tho suit WAS prosecuted in tho namo Of
tho sovereignty, by some porson, or perBons,
called roiator. Tho statute Of 1871-2 has
changed tho practice materially in man.
: damus caHes. Such change has not
perhaps EXTENDED 60 far as to dispense
: with the making Of tho State party
/. to the suit. 1naamuoh, however, as tho action
is substantially Q civil romody, and tho State 1t
bost only nominal party, and as tho Court hes.
under otr 1ato statutos, The right, at my times
before final judgment, to allow the action to bo
anaondcd BY tho introduction of tho State IA a
party, shall now treat tho case az II tho suit
had beeu instituted In accordance with tho COM
1non-law Practice and shall, for the present, dis
regard tho objection as to the form Of tho
action.
HISTORY or TIE CASE.
a. Ih1 p petition !. alleges amongst other things,
member Of tho Board Of Trade, which corpora
tlon was organized under special charter Of
the State in tho year 1869, and that he contin-
usd qssa a mombor ot that Board up to tho year
asHessmants, and WAS in the full enjoyment Of
: tho rights and privileges Of the members Of said
Board. 'Ihat, In tho year 1871, he formed o
partnorship with john B. Lyon and T. B. Rice,
for tho purpose Of buying and aclIng grain
and other commodities Oh their own accolnt and
on commission, and that said firm WAS among
tho largest operators upon tho Board that ID
mndo contract with Oulbertson, Blair l. Co.
for. the purchase Of 10000 buslels OF No. q
spring wheat at S1.571]5 por bushol, to DO dolly
e5ea at helle1s' option during August 1872; that
Bea5d demanded ct tho time Of tho execution
OF tho consrnct 81 800 as margin, which was
promptly deposited with tho Treasuror Of ths
6onra BY j. B. LsSn Co.; that from various
n natfan ~ t1o petitioner at length
had greatly declined in the market. nnd
Culbertson, Blair 4 Co. having demauiIed
sn additional margin Of s2,2oo, tho snid j. D.
respond, but did not repudiete their contract
and #ero In q position to fulfill tho same, and
had money in bank to pay for tho wheat whom
delivered Dc in quantity and quality. aa called, for
~ tue contract; that Culbertaon, Blair i Co.
never delivered nor offered to dellver whest Of
tho grade mentioned In the contract, OF any
whoat whatever, during tho month Of August.
but, upon tho refusal Of ]. 3, Lyon Co. to put
contract vas closed. thoy fixing tho price OF tho
wheat at $l.1l1 per bnshel, and Oulbertson,
Blair l. Co. then claimed Of petitioners fr1n
tho sum OF $4,000 which they refused to pay,
ea nnaaT nIotoA sl!9wsd 3 aad oulbortson Blair
poait with tho Treasurer OF the board. .
On the 26:h of August, 1879, Culbertson; Blair
20. commenced m attachment suit in the
state s Of Nov York againat ]: D. Lyon Il Co., for
breach Of the contract. On the came day they
applied to tho Secretary Of the Board, and asked
Tor tue suspension ot J. B. Lyon l. Co. from the
privileges Of membership until they had settled
Tie diiforenee between said firms. At II o'clock
of Aug, 26, . noto was cent to J. D. Lyon d
Co, by the Secretary Of the Board, notifying
him; aud ho also informed him very fully Of i
meeting Of the Board OF Directors at half-paet Q
,h.sd ,hft a,seEaooa s;';ooo. tS try the sad
cation was sufficient, to which petitioner
replied, ''Yos." At half -past o'clock tic Doa1d
Ct Directors mot, and Mr. Dlair, Of the firm OF
making Of the contract, and it's breach, and tho
refusal to put up the g., 200 margin, and that ho
had sont J. B. Logan 3 90. q bill Of the differ
onco, amounting to a. eco, which petitioner had
refused to pay, and asked for suspension Of
j. Is. n a. ~
: borship of tho Board. Petitioner and John B.
Lyon we're present, and made no response or de-
tense, but admitted nothing and waived nothing
that J. B. Lyon & Go. DO suspended from tho
privileges o. membership in tho Board for
" failure to comply with their contract with Oul-
bertson, Blair d Co. Petitioner further claima
pend him, but TINT that power exists on1y in the
Board Of Trade Us 3 whole, when properly con-
yened; that they had no right to suspend J. y.
Lyon d Co.. but only the individual members Of
the proceedings Of tho board Of Directors wero
hasty and projudiced, and that, by their Illegal
and unjust action, lie has beon excluded from
The Board and prevented from tranaaoting any
bership IL valuable franchise for which he has
paid large sum, and from which 1o Ia entitled
to draw large income in the receipt OF his usual
commissions, etc. and that hid exclusion from
the Board entirely destroys hH business
- MExlDKlau1p NOT FRANCHISE,
Membership In such an organization Ia not q
franchise, and Tho Courts do not interfere for
tho protection OF members any further than to
300 HAT tho rulcs arc not In conflict with law,
and that tho Society In tho control mud diHci-
plino Of itH members, proceeds In conformity
With lts own rulea nnd bylaws Corporations
organized under charters dotive thoir powers
from the law which oreatos them and not from
kho assont OF tho individual 1nombo1s. Their
members at0 bound by the nroyiBiona nf tho
rhqrtor, and all by-laws passed in conformity
thorewith. independent IT tho question whether
they hive formally eignlnod assent thoreto.
Membership In corporation is q. franchise, aud
tho deprivation Of It is Acknowledgement. Tho
. lights Of mombora being confined by law, such
can only DO invested In conformity with
law: Tho agreement to oboy tho rules,
therefore,, III tho case OF . mombor
Of tho Board Of Trade, can have no
binding efficacy In any caso wheIo such rule
contrayones tho provisions Of i.B charter The
pertinent inquiry, therefore, IL, did tho charter
. and by-lawa Of the Doard Of Trado, paasod In