, 1873-07-23

pulBlo1. wo should DO inclined to hold Tint
prompt performance by tho inomborB Of their
contracts with each other, was 50 important to
tho woll-being Of such corporation aH this, TINT
q member failing I'll this regard was guilty Of Il
breach of his duty aH corporator, md II tho cor
poration thought proper to paRs q bylaw maxi
ing Bucn breach Of duty D grounil OF llefran-
cllsomont, the net would hare to be Sustained OH
an oxorcise Of ita inherent powor undor tho rulos
Of tho common law
Tho decision iii tho Page caao Is, therefore, not
without its value III passing upon tho right and
powor of tho Donrd OF Directors to auspond n
rember under BOO. . Of 1su1o of tho Doafd
OF Trade, In Btato Of facts ouch as appeared in
tho record In TINT caeo.
FORM OF Tn1AL ny TIE BOARD or DIRECTORS.
Admitting that Driuo could DO tried by tho
Doard Of Directors for a Noncompliance with
his business contract under tho section above
named, how is such trial to be conducted
Tho rula requiroH an examination Of tho facts,
and finding by tho Doard Of Directors, aud tho
Inv determines tho naothod to bo pursued in
arising Mt tho result.
mont as nS p1Ss'ehaaaS Be hsa by By and aFSeos1 befoo
tho authorized body duly assembled.
Dillon Oh Municipal Oorporatfona, Soc. .1o1 !;
drant on Corporations, pngo 24B; Willcook on
i naoant b'y daig assae'no!ed 1nny b ioarnod IN
Ylews of tho Adjudgcd Caaes. In Hex '.
Favoralam, Term Hop. GAL, Lord Konyon OK
pressed tho opinion that Every mclnbor Of the
company; having power to disfranchiac, should
noss" though tho case did not nocossarily IN
volvo tho decision OF TINT point. In Ilex Y. Liy-
orpool 2 Burr. 73t, Lord Mansfield said. !" That
suppoang this select body OF tho corporation to
havo authority to remove and abstraetodly from
1t does not appear that the constitution
Of mombors Of tho body who mado
tho amotion worc Summoned ut all to
this .1nooting whereas, 1t not appearing
ought to ,avc beon special or ut loast general,
notice giyon to each individual mombor OF it
that thoro was to be such a meeting. Tho rulo
IL thus atated by Mr.. Qrant In Ills work on cor
noEattons pago 2e o. to tho organization Of
tions aro further governed by tho general rulo
that all tho mom6ors Of tho body who moet to
do a specific act, must be summoned to tho
moesing, and hayo notice Of the businoHs to DO
brought bofore tue meeting, with this qunlif1ca-
where tho meeting is held BY adjournment from
ono ut which, by tho constitution, ovory member
OF tho corporation Id supposed to be present,
and where tho subject was commenced and gono
into to certain extent
Sccond-Anothor rulo Of law well sottled in rof-
eronce to such trials Is, that tho poraon accused
must hayo chnrgea preferred against him, and
reasonable notice Of tho time aud place OF trial:
4 notice from 10 o'clock to half-past would
hardly be considered III low to bo reasonable
notice In q caBo like this, but inasmuch ns this
defect Of notice was cauacd BY the petitioners
having appeared and not objected to the no.
tices, I shall not dwoll upon this point.
Third-The accusod is entitled to hayo tho caao
proved against him, unieHB lie appears and con-
foas tho charge. His silence cannot be construed
into d confession of gnllt.
,Yillcocls says (page 26D: "If tho officer re-
main silont and do NOT dony tho charge,
it, it must ,,ro.boes bo examined snd p%5ovea
as though ho Ind doservod it, for On amotion or
pretenBe that his sonco amounts to confession
iH void" To tho same effect is the language in
Ames on Corp: Sec. 422, p. 49, Lord Kenyon.
in tho caso of Rex. Y. FaverBharn, Baid that tho
proved, and that tho rot'1rn to tho writ Of man
damus must DO quashod because 1t did not show
that tho charge was proved. Dillon says (sec.
123 p 2ss9: 3d. =; tn the ne; charge be BE- % not dGnoa,
IIannan and Tappenden ct al. 1st East,
27l, Lord Kenyon. said it was undoubtedly
irregular in dsfranchHing person upon Lis not
making answor, and without proof Of the charge
aud III the Ha1no case Justice Lawrence said
" thoy were indeed guilty Of tho error In their
proceedings to disfranchise him, in not going
into any proof Of tho ofrenao charged against
him, but taking his silence as a confession"
The pngo case ia an authority againBt this po-
aition, tor in TINT caao tho record Ahowed that
Page confessed tho charge aud the decision Of
Judge Lawrence turns upon thai point.
THE BOARD or DIRECTORS NOT REGULARLY con-
vENED.
H. Was necessary by tho practice in mandamua
casos. prior to tho late statute. that tho return
to tho writ should act forth that the powor to
body removing had the power to remove
and was legally constituted, and show by
conformity with law, TO hear proof. and TINT tho
diHfrauchisemont was founded upon the eYi-
donco given against tho offender on the hearing
hn1 III M nf T,nfirn fTrY3,ir7ft
Mand., 200-204. Under tho present statute,
tho answer to tho petition stands in tho place Of
tho roloyinato common law. and IL it does not
GOT out tho facts above stated it is obnoxious to
that tho petition was triod in accordance with
tho rules above act forth? It docs not appear
from that anBwer that tho meeting Of the Board
OF Directors was tho regular meeting which, by
tho bylaws, il on the second Monday Of every
month, nor does 1t appear that the Directors
wore aovera'ly notified to appear, and also noti-
flod OF tho subject 1nattor which would bo
called to their attention. It 10 true that
tho answer states that the Board was regu-
statement is not tho ortai1ity required In such
pleading. It must disclose the fact from which
tho Court can Bee that tho Board was regularly
convened. It appears by tho rulos Of the Board
Of Trade, that tho Doard Of Directors consists
um. 1t appears by the answor that tho potitiou-
or was suspended by Q vote of s againBt and 4
for him. Had tho Board Of Directors boon
notified Of tho meeting, and the nature Of the
business to DO transacted, 1t is possible that all
the mombers Of said Board would have boen
present. Inasnuch as the answer does not state
that they were soverally notified of tho timo,
place, and object of tho meeting, I have the
right to aasamo, for the purposes Of this opin-
ion TINT they woro not 90 notified, aud, II not,
It cannot bo said that thoir notification would
not have produced tlitroront result in this case,
NO PROOF TAKEN.
Agnin tho answer docs not show that any proof
WAS takon boforo tho Board Of Directors In sup
port Of the charges against petitioner. Tho
anawet shows that he md ]. B. Lyon wore pros-
ont, aud did not admit or do1sy the charge. This
made it incumbent upon Onlertson, Blair & Co.
to prove the caso against the petitioner. The
answer further shows TINT @. ]. Blair made q
statement before the Board, but thore is no pro-
tenco that such a statement was sworn to- OF
that there was any proof whatoyer produced in
tho case. 10 call tho unsworn statements Of any
map ''.proof." in any sense in which that word
Is employed in Inv, would DO simply absurd. Tho
petitioner was entitled to trial, not bofore q
court, not before tho whole corporation, but be-
fore tho Board Of Directors, representing
the corporation against Which ho was