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PEOPLE ex rel. Swinburne v. Albany Medical College

10 Abb. N. Cas. 122 Court N. Y. Supreme Court, Third Department; English

Delivered by Westbrook, J.

Contents

Majority

p. 122
PEOPLE ex rel. SWINBURNE v. ALBANY MEDICAL COLLEGE.
N. Y. Supreme Court, Third Department;
Special Term,
1881.

Headnote

Colleges.—Meeting oe Trustees.—Two-Thirds Vote.—Indirect Removal. —Mandamus.
The Albany Medical College is a corporation,[1] and is subject to the provisions of the statutes applicable to colleges generally.
Chapter 15 of the first part of the Revised Statutes, and article 3 thereof, do not refer exclusively to literary colleges.
A meeting of the trustees of a college, from which some are absent, is not a legal meeting, unless notice was published pursuant to the statute, as well as given by mail in writing.
Under a charter provision requiring a two-third vote to remove an officer, an abolition of the office, its effect being to remove an incumbent, is not valid without such vote.
Since L. 1876, c. 133, amending 1 B. 8 . 410, § 50, a professor in a college may be a trustee.
Mandamus lies to reinstate a professor in an incorporated college, illegally removed by the trustees.
The relator, John Swinburne, applied for a mandamus against the trustees of the Albany Medical College to reinstate him in his professorship therein. The facts appear in the opinion.
Henry Smith and Fitch James Swinburne, for the relator.—
I. The authority of the trustees is defined by L. 1839, c. 26, p. 28.
II. Section 4 authorizes the trustees to appoint professors and remove them by a vote of two-thirds of the members constituting said board.
III. The proceedings of the trustees were irregular, as no notice was given of the meeting (1 Edm. Stat. 406, § 33; 1 R. S. 460, § 33; Vol. 2 of 6 ed. p. 12).
IV. These trustees could not abolish the chair, where
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they could not remove the professor. They could not accomplish indirectly what they could not do directly.
Y. The writ of mandamus is proper wherever some legal right has been violated, and there is no other appropriate remedy (People ex rel. Griffin v. Steele, 2 Barb. 397 ).
YI. Mandamus is the proper remedy, and ought to issue to reinstate the relator (People ex rel. Barnet v. College of Physicians and Surgeons, 7 How.Pr. 290 ; 2 Burr. 1043; 3 Id. 1265; People ex rel. Walker v. Albany Hospital, 11 Abb. Pr. N. S. 4; Green v. African M. E. Church, 1 Serg. & R. 254 ; People ex rel. Bartlett v. Erie Med. Society, 32 N. Y. 187 ).
Amasa J. Parlcer, for the respondent.

“The Albany Medical College” was created a corporation by and organized under chapter 26 of the Laws of 1839.

The board of trustees is composed of twenty-five persons, and by the act aforesaid (section four) such trustees are authorized “ to appoint the professors, and such other instructors as they may deem necessary, subject to a removal by a vote of two-thirds of the members constituting said board, when found expedient and necessary.”

The relator, Dr. John Swinburne, was on February 8, 1876, duly appointed professor of fractures, dislocations and clinical surgery in said college, which position he accepted, and continued to discharge its duties until January, 1880.

On January 2, 1880, a meeting of the trustees was held, at which the relator alleges only nineteen were present, and by a vote of fifteen to four, as he also claims, the professorship, which the relator held, was abolished.

The respondent, however, insists that twenty-one trustees were present at such meeting, and that seven

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teen voted in favor of the resolution abolishing the professorship.

It is conceded that the only notice of the meeting was by postal card addressed to each of the trustees, and that Dr. S. Vanderpoel, who was one of the trustees, and also a professor, voted for the resolution of which the relator complains.

The principal question which this application pre- . gents is, was the meeting of the board of trustees legally called and held %

There can be no dispute but that “ The Albany Medical College” (L. 1839, c. 26) is a corporation, and also, as its name imports, a college.

By the statutes of this State (Vol. 1 of Edmonds’ ed., p. 406; vol. 2 of 6th edition, p. 12)it is provided : “The trustees of every college to which a charter shall, be granted by the State shall be a corporation.” Provision is then made for the meeting of trustees, and it is enacted, “Notice of the time and place of every such meeting shall be given in a newspaper printed in the county where such college is situate, at least six days before the meeting; and every trustee resident in such county shall be previously notified, in writing, of the time and place of such meeting.”

It is argued, however, in behalf of the respondent, that the provision of the statute which has been quoted refers only to “literary colleges,” and that chapter 15 of Part I of the Revised Statutes, of which it is a part, is not made applicable to “The Albany Medical College,” but (section 8 of charter) the eighteenth chapter is.

The eighteenth chapter of part one of the Revised Statutes is entitled “Of Incorporations” (1 Edmonds’ ed., p. 135), and did not contain the pages referred to by the counsel for respondent (pages 474, 475 and 476 of vol. 2), which are in the sixth edition. That edition was not a compilation by legislative authority, but its

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compilers have grouped, for convenience of reference, under what they deemed the appropriate parts of the Revised Statutes, such laws as they saw fit. Indeed the whole of article 2 of title 11 of chapter 18 of part 1 of the Revised Statutes, entitled, “Of the incorporation of academies and other institutions of learning,” and contained in such sixth edition, is simply chapter 184 of the Laws of 1853, and which had no existence when “ The Albany Medical College ” was incorporated, and the same is not now, and never was any part of the Revised Statutes proper, and section thirty-four, page 491, of volume two, of the sixth edition (so called) of the Revised Statutes, which the counsel for the college supposes provides for it, is only section eight of the charter (chapter twenty-six of Laws of 1839), arbitrarily inserted as part of the Revised Statutes, to which it does not belong, and of which it forms no part.

As “The Albany Medical College,” besides being a college, was also a corporation, it was eminently proper to subject it to the provisions of the Revised Statutes entitled “Of Incorporations,” as was done by section eight of its charter, “ so far as the same are applicable and have not been repealed,” but that fact did not make it any the less liable to these provisions of the general law applicable to “ every college,” and to it, therefore, because it is a college.

There is also a provision in its charter (section six) which declares: “The college sliall be subject to the visitation of the regents, and shall annually report to them.” A reference to chapter fifteen of the Revised Statutes, which contains the provision hereinbefore quoted (1 Edm. ed. 406, section 33) in regard to the giving of notice of a meeting of the board of trustees of “ every college,” will show that article first of that chapter (1 Edm. ed. 402) is entitled “Of the Organization and Powers of the Board of Regents,” and such board of regents is empowered (1 Edm. ed. 404, section

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19) to confer the “ degree of doctor of medicine,” which degree, when thus bestowed, “shall authorize the person on whom it is conferred to practice physic and surgery in this State.” These facts and the farther one, that the general law, under which medical colleges may now be incorporated (chapter 184 of laws of 1853, and also incorporated in volume 2 of 6th edition of B. S., page 473, &c.), is entitled. “An act relative to the incor- ■ poration of colleges and academies,” conclusively show that chapter fifteen of the first part of the revised statutes, and article second thereof, do not refer exclusively, as the counsel for the respondent insists, to “ literary colleges,” and that consequently the meeting of the trustees, at which Dr. Swinburne’s professorship in the medical college was abolished, was illegal, because notice of such meeting was not published, as required by the statute.

It is argued, however, that there were twenty-one trustees present at the meeting, and as seventeen voted for the resolution abolishing the professorship, the failure properly to call the meeting, and the non-attendance of the others, made mo difference in the result. To this position there are two plain answers: First—It was no' meeting of trustees, as such, unless properly called ; and, second, if the three other trustees had been present we do not know what the result might have been. Their presence, their statements and arguments might possibly have changed the entire conclusion.

The fact, too, that there was no legal meeting of the trustees, answers the argument that as Dr. Swinburne was not removed from his professorship, but the professorship was abolished, it could be done by less than a two-third vote. It would, however, be difficult to show the distinction claimed. The truth is, Dr. Swinburne was in fact removed from office, though the trustees did not so style their action. The courts deal with

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things, no matter by what names they are disguised, and though the act attempted to be done is called the abolition of the professional chair, its effect being to remove Dr. Swinburne from, office, the provision of the charter requiring a two third vote was applicable.

It is said that for the meeting of trustees at which Dr. Swinburne’s professional chair was created, no notice had been published. If this be claimed as a precedent, it is sufficient to quote the old adage, that “two wrongs do not make one right;” if, however, it be argued that Dr. Swinburne was not for that reason legally appointed a professor, the answer is clear that the acceptance of the Dr’s, services for four years as a professor, cured the irregularity of the original appointment, if any there was.

There were other points made upon the argument, which I'have not deemed it necessary to discuss. It may be proper, however, to say that the provision of the Revised Statutes (1st ed., p. 410, sec. 50) which declares “no professor or teacher of any incorporated college or academy shall be a trustee of such college or academy” is amended by chapter 132 of the laws of 1876 to read as follows: “No professor or tutor of any incorporated academy shall be a trustee of such academy.” There was, therefore, no valid objection to Dr. Vanderpoel as a trustee because he was also a professor.

Neither do I deem it necessary to discuss the propriety of the remedy by mandamus. Objections of this character never strike me with favor. If a court has jurisdiction of the subject matter and of the parties by any of the modes known to the law, there is no reason why it should not exercise its powers to undo a wrong; but the objections to the remedy in this instance are answered fully by the cases cited by the counsel for the relator.

The mandamus asked for must be granted.

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