SLEEPER v. THE FRANKLIN LYCEUM

T. A. Jenckes, for the applicant: —

I. This is a proper remedy for the relief sought. Angell Ames on Corporations, Ch. 12 § 431, and cases there cited; Ib. Ch. 20, § 704, and cases there cited.

II. The relator was unlawfully deprived of his rights and privileges as a corporator. From the records of the society, (October 6th, 1862,) it appears that the relator was suspended from the privilege of debate until he should make a suitable apology for a communication which was read by the secretary at that meeting. It does not appear that the relator addressed the communication to the corporation, or that he requested the secretary to read it, nor does the record show what the communication was, or in what matter it reflected (if at all) upon the officers or committees of the Lyceum. It does not appear by the records (record of meeting, November 17th, 1862,) that the association complained that the relator did not submit to the vote excluding him from debate, without protest, but claimed the floor for the purposes of debate at meetings between that, when the vote of suspension was passed, (October 6th,) and that of November 17th, when the resolutions of expulsion were offered. These resolutions for his expulsion set out two grounds therefor: one that he persisted in claiming the floor, notwithstanding the vote of suspension; and second, that he had issued a circular offensive to members of the association. On December 1st, 1862, the resolutions of expulsion were debated, and the vote being taken, they were declared lost. Thereupon, a member (not of the prevailing party) moved a reconsideration of the vote, which motion was declared out of order by the presiding officer, from which decision an appeal was taken, and the appeal sustained, and thereupon the further discussion of the motion to reconsider the resolutions of expulsion was postponed till December 8th. On that evening, the motion for reconsideration was put and declared carried; and thereupon a further discussion of the resolutions of expulsion took place, and upon a vote being taken, the resolutions were declared carried, and the relator was pronounced expelled. The relator and others of his friends protested against the action of the association, both on the appeal from the decision of the chair, and upon the passage of the resolutions of expulsion.

1. The vote of suspension was illegal. No sufficient cause is assigned for it, and there was no notice or hearing upon it as required. The power to suspend is included in the power to expel. Jefferson's Manual, 114, (N. Y. ed.); Cushing on Parliamentary Law, 32, 250, 251, 265, 268. The record does not show that it was passed by the requisite vote. There was no disorderly or immoral conduct alleged in the relator. See By-Laws of Lyceum, art. 1, § 12. How a member uttering words alleged to be disorderly is to be treated, see Jefferson's Manual, 714; Cushing, 671 — 686. 2. The suspension having been illegal, the relator's conduct in persisting against it, and claiming the floor for that purpose, is not disorderly. 3. Writing circulars concerning the society or its members, and reflecting upon the character or conduct of either or both, is not disorderly conduct as a member of the association. If any one is injured by such publications, the law affords an ample remedy. Such disorderly conduct as would authorize suspension or expulsion must take place at the meetings of the society, in the course of the transactions of the business of the society, and must be persisted in with the intent of disturbing or breaking up the meetings. Mere claiming, and insisting upon with earnestness, a right of which the member has been illegally deprived, is not such disorderly conduct. The resolution therefore alleges no sufficient cause for expulsion. 4. The resolutions of expulsion having been lost, it was not competent for the numerical majority, not being the majority required by the by-laws of the corporation, to reconsider the vote, and have a further discussion, and call for another vote on the same resolutions. Jefferson, 151, 152, 164, 165; Cushing, pp. 505, 507, §§ 1264, 1269, 1270. The reconsideration and subsequent vote were therefore illegal and void, even if the resolutions had set forth sufficient cause.

III. The relator should have the relief asked for, and a peremptory mandamus should issue, commanding the defendant corporation to restore the relator to his rights as a corporator.

Thurston Ripley, for the respondent: —

It becomes unnecessary to consider the question of the propriety of the vote of the society of October 6th, 1862, suspending the relator from the privileges of debate, inasmuch, as, if the subsequent proceedings of the society on December 8th, 1862, expelling him from the society, are sustained, there is no aid which the court can give to the petitioner by reason of any irregularity accompanying the vote of suspension. The question at issue upon the vote of expulsion is simply this: Was the vote passed in accordance with the constitution, by-laws, and governing rules of the Lyceum? If it was, the relator was properly expelled; if it was not, he is entitled to be restored to his privileges as a member of that body.

I. Did the relator make himself amenable to the provisions of section 12 of the by-laws, relating to the grounds for which a member may be expelled? He addressed an offensive communication to the secretary in his official capacity, which was intended by him to be read by the secretary to the meeting. It was so read by that officer, at a meeting at which the relator was present. This communication reflected upon the society, and the manner in which it was communicated — through the secretary and with the intent that it should be read at a public meeting — was a clear contempt of the society, and brings his conduct within the definition of the term "disorderly." Disorderly conduct does not consist solely in the use of loud and offensive words. It may consist in gestures or in grimaces, or in contumacious silence when bound to speak, or in any other conduct which is in violation of decorum, and is provocative of disturbance. In this instance, it was a fire-brand thrown by the relator, and could have been thrown with no other object than to kindle a conflagration. The society took notice of this conduct, and suspended the relator from the privilege of debate until he should apologize for his conduct. The power to punish a contempt is within the proper powers of a deliberative body and of a society of this character, and it was competent for the society to suspend the relator until he should apologize. If his conduct was disorderly in presenting this communication, he was properly suspended; and while this vote was in force, and the offence not expiated by an apology, he had no right to persist in the privilege of debate. He did not apologize, and did, in defiance of the vote of the society, insist upon claiming the floor for the exercise of the right which he, by the proper vote of the society, had been deprived of. Further than this, he issued an offensive circular.

If either of the grounds stated in the resolution of expulsion are sufficient, the relator cannot complain that another ground for the action of the society was also stated in the resolution which is insufficient. It is claimed, that persisting in an effort to enjoy the privilege of debate while the vote was in force is disorderly conduct, and as the by-laws do not define (§ 12) in what disorderly conduct shall be deemed to consist, it is left to the judgment of the society, who can decide for themselves what is, and what is not, conduct of that character. The society held that his conduct, on this occasion, was disorderly; and this conduct was often repeated. (Record of November 17th, 1862.) He was called to order repeatedly, but still persisted, and thus violated the express rules of order for the government of that body, which requires the members to sit down. December 1st, 1862, the resolution of expulsion came up for action, and required for its passage the vote of three-fourths of the members present. The requisite number did not vote in favor of expulsion, though a majority of the members present did so vote. A member of the Lyceum voting with the numerical majority in favor of the relator's expulsion moved a reconsideration of the vote. The presiding officer held that the motion was not in order, interpreting the sixth rule, on the subject of reconsideration, to require that the motion should come from the prevailing party, which, in this case, was the numerical minority. An appeal was taken from this decision, and the society overruled the chair. The question was then referred until December 8th, when the vote was reconsidered, and the relator expelled by a three-fourths vote. It becomes necessary to inquire whether the motion to reconsider was properly made. The rule is in these words: " Sixth. When a motion has been made and carried in the affirmative or negative, it shall be in order for any member of the majority to move for a reconsideration of the same." What is the meaning of the word " majority," as here used? In the absence of any rule on the subject, this motion to reconsider can be made by any member, and be decided like any other question. Cushing's Manual, § 1266. It will be observed that the rule does not say, the "prevailing party," but the "majority." Ordinarily, and with great propriety, the rules on this subject specify that the motion shall come from the prevailing party, but without the least violence to the language of this rule, it may be interpreted the other way. Very probably the framer of the rule intended to use the word majority in the sense of "prevailing party," but this is immaterial even if the intent could be established; it is a question of the meaning of language as used. In a case of ambiguity in the meaning of a rule, the society are the proper interpreters of its meaning. It is within their power to alter their by-laws, upon notice and upon a two-thirds vote; and to suspend a rule of order at any time upon a two-thirds vote. This appeal was not for the purpose of altering the by-law, but for rightly interpreting it. The society, in effect, said, by their decision on this appeal, that the word "majority" was to be taken and understood in its proper and ordinary acceptation, and did not, in any case, mean the minority. Usually it happens that the majority are the prevailing party, and if the rule had used the latter words, the society would have been bound by it; but as these words are not used, it is not for the courts to supply them, or to say that this word "majority" is not, according to all rules of interpretation, to be taken in its primary and usual acceptation, especially after the society for whose government it was framed have decided as to its meaning. For these reasons, we submit that the expulsion of the relator, on the 8th of December, 1862, was for a proper cause, upon an offence committed within section 12, and upon regular proceedings.