
    The Commonwealth against The Guardians of the Poor of the City of Philadelphia, &c.
    Monday, April 16.
    The guardians of the 1 poop of the . city of Phila- ‘ delphia, the ; district of Southwark, 1 and township of the Northern Li • berties, have power to expel members from their .board.
    The mere misemploy1 mentof money . is no cause for amotion, but : charging the , corporation ■with money , which the member never paid, is sufficient cause.
    The 13th : article of the bye-laws ofthe guardians of the poor of the city of Philadelphia, &c. declares, that no member shall be expelled by a less number than two-thirds ofthe members present, and that no expulsion shall take place without giving the accused person notice, in writing, to attend the board and answer the charges preferred against him, a copy of which shall be transmittedto him, which notice must be at least six days before the time appointed for such hearing. A number of charges, some of which authorised expulsion, were preferred against a member of the board, who was furnished with a copy of the charges, and fully heard in his defence, at a special meeting culled at his own request, when a resolution, declaring that he had violated his duty as a guardian óf the poor, was adopted by a less number than two-thirds of the members present. This amounted to an acquittal; and the board having afterwards, at a stated meeting, passed a vote of expulsion by a constitutional majority, without any new accusation or further hearing, it was held to be illegal, and the expelled member was restored.
    It seems that if the return to a mandamus state, in general terms, that the member was expelled for a violation of duty, without specifying the charges on which he was convicted, it is bad.
    
      SYLVESTER ROBERTS having been removed by the Guardians of the Poor of the city of Philadelphia, the district of Southwark, and township of the Northern Liberties, from his situation as a member of the board, he obtained a rule to shew cause why a mandamus should not issue to the defendants, commanding them to restore him. On the return of the rule, the Court, after a partial hearing, directed an alternative mandamus to issue, commanding the defendants to restore the relator, or shew cause for not doing so. On the 9th of this month, a return was made, which, in substance, stated, that by an act of assembly, passed the 29th March, 180S, entitled “an act for the consolidation and amendment of the laws, as far as they respect the poor of the city of Philadelphia, the district of Southwark, and township of the Northern Liberties,” the guardians of the poor for the time being were constituted a body politic and corporate in law, by the name of •« The Guardians of the Poor of the city of Philadelphia, the district of Southwark, and township of the Northern Liberties,” with all the privileges, powers, and faculties incident and necessary to the existence of such a body, and especially with power to make such laws, rules, and orders, as might appear to them, or a majority of them, to be needful for the government of the said corporation, its officers, estates, property, and their business and affairs in general: That under the sanction of this act of assembly, the guardians of the poor have established bve-laws, and passed standing resolutions for their government, and have, from time to time, as occasion required, exercised the right of removing from office such of their members as violated their trust: That, in , : order to guard against injustice, and to prevent any sudden removal without giving to the party accused an opportunity being heard, the following bye-law was passed:
    “ Article XIII. No member shall be expelled by a less number than two-thirds of the members present; the vote to be by ballot. Provided, however, that no expulsion shall take place without giving the accused person notice, in writing, to attend the board, and answer the charges preferred against him, a copy of which shall be transmitted to him, which notice must be at least six days before the time appointed for such hearing.”
    At a meeting of the general board of Guardians, on Friday, the 5th January, 1821, at which Mr. Roberts was present, the following resolution was adopted :
    “ Resolved, That a committee of five be appointed (by ballot) to examine the accounts of Sylvester Roberts, to visit the paupers on his list, and ascertain if he has admitted any on his list contrary to the orders of the board.”
    A committee was accordingly appointed, and at a meeting of the board on the 16th January, at which, also, Mr. Roberts was present, the committee made a report containing twenty-six specific charges against him, of misapplication of public money, of overcharges against the corporation, and of charges against them of money which he never paid. The report further stated, that several of the persons charged as paupers were children who should be at the asylum, and that several others were aged and infirm women, who should be in the alms-house, and that many of the paupers complained of unkind and harsh treatment.
    As soon as the report of the committee had been read, a resolution passed, that Mr. Roberts should have leave to explain ; upon which he rose and commented upon the different specifications contained in the report. When he had closed his observations, a resolution was offered, declaring that Sylvester Roberts had violated his duty as a guardian of the poor. The decision on this resolution was postponed, and the secretary of the board was directed to furnish Mr. Roberts with a copy of the matters alleged against him, and accordingly a copy of the report was left at his dwelling-house on the 19th January, 1821.
    On the 23d of the same month, another general meeting of the beard took place, at which Mr. Roberts was present, when the resolution proposed at the preceding meeting, was considered. After it had been discussed and another resolution, offered as a substitute for the first, rejected, Mr. Roverts expressed a wish to have time given him to collect timony, and make his defence. The board, therefore, resolved, that a special meeting should be held on the 31st January, for the purpose of hearing such evidence, as Mr. Roberts might produce. At this meeting, after the report of the committee, and the resolution declaring that he had violated his duty as a guardian of the poor, had been read, Mr. Roberts entered upon his defence by reading a number of depositions relative to the charges against him, accompanied by such comments and explanations as he thought proper to make. When he had concluded his defence, several new resolutions were offered as substitutes, and rejected by the board, and, finally, the original resolution, offered on the 16th January, was adopted. Yeas, twenty-two. Nays, twelve.
    On the 6th February, 1821, a stated meeting of the board took place, at which Mr. Roberts was present, when the following resolution was passed by twenty-seven yeas to eight nays :
    “ Resolved, That Sylvester Roberts, a member of this board, be expelled in consequence of a violation of his duties as guardian, agreeably to the specifications preferred against him.’*
    After having set forth the above proceedings very fully, the return to the mandamus, proceeded to a course of reasoning, which need not be introduced here, in order to shew the legality and propriety of the measures adopted by the board of guardians.
    
      Condy, for the relator.
    Whether the guardians of the poor have power to expel at all, is doubtful; but as the removal in the present instance, appears, on the face of the return, to be bad, that question may be waved. The committee appointed to inquiry into the conduct of Mr. Roberts, reported twenty-six objections, many of which were mere errors of account; some were loose allegations of impropriety of conduct, and others contained a partial statement of the. truth j many of them would not authorise an expulsion. The board passed no decision on any of these objections, but merely declared, in general terms, that Mr. Roberts had violated his duty as a guardian of the poor. This general vote of censure was passed by less than two-1 thirds of the board, which the thirteenth article requires in order to expel a member.^ Here the matter rested. No notice was given to Mr. Roberts that it was intended to expel him, and he naturally concluded that the whole business was settled. On the 6th February, however, a motion was made toexpelhim, which was adopted by twenty-seven votes against eight. This was the first time at which the idea of expulsion was suggested. Thus he was expelled without six days notice having been given to him, or any notice to others, that such a measure was intended, upon no specific charge, but upon a mere general vote of censure, in violation of the article which declares, that no member of the board shall be expelled without giving him notice, in writing, to attend the board, and answer the charges preferred against him, a copy of which shall be transmitted to him, which notice shall be at least six days before the time appointed for the hearing.
    Duane, for the guardians,
    in support of the power of expulsion, referred to 2 Bac. Ab.. 21. 1 Bl. Com. 484. 2 Esp. 317. 1 Burr. 540. 2 Binn. 448. He then argued, that the expulsion was legal and proper. The guardians of the poor act without pay, and upon compulsion. They have large sums of money at their disposal, which call for close attention on their part, with respect not only to fraudulent, but negligent conduct. In proceeding against Mr. Roberts, they gave him every opportunity to explain. On the 16th January, he entered upon his defence. On the 23d, the secretary was directed to furnish him with a copy of the charges ; and on the 31st, a special meeting was called at his request, when he was fully heard in his defence. Of this meeting he had full notice, which was sufficient; for there is no bye-law requiring six days notice to be given previous to expulsion. If, however, there was any defect of notice, it was waved by the appearance of the accused at the time assigned, at his own request, for a hearing.
   Duncan, J.

delivered the opinion of the Court.

The respondents, by their act of incorporation, are empowered to make such laws, rules, and orders as shall appear to them necessary for the government of the corporation, its officers. estates, property, and their business and affairs in general. Ever since the King v. Richardson, 1 Burr. 517, it has been considered as completely established, that the power °f amotion is incident to a corporation. There is a tacit condition annexed to this franchise, which, if the member break, he may be disfranchised ; and where the offence is merely against his duty as a corporator, he can be tried only for it by the corporation. Unless this power Wfre incident to the corporation, offices might be forfeited for offences, and yet there would be no means to carry the law into execution. The offences for which a corporate officer may be removed, have been divided into three classes: 1st. Such as relate to his corporate or official character, amounting to breaches of|the condition tacitly or expressly annexed to his office. 2d. Such as have no immediate relation to his official character, but are, in themselves, of so infamous a nature, as to render him unfit to enjoy any public office: And 3d. Offences of a mixed nature, being not only against his corporate or official duty, but indictable at common law. The specific charges against the relator would fall into the first class. . The mere misemployment of money is no cause for amotion, Rex v. Chalke, 1 Ld. Raym. 226 ; but the charges here are of a very different nature; charging the corporation with money he never had paid, which is clearly a good cause of disfranchisement, The King v. Mayor of Doncaster, &c. 2 Ld. Raym. 1566. The charges specified would amount to such official misconduct as would justify the removal of the relator. But there are many objections to the course pursued. These respectable gentlemen have, with all fairness, detailed the mode of conviction and expulsion, and without the imputation of any improper design, of which there is not the slightest evidence, they certainly have fallen into palpable mistake and error. The 13th article of their bye-laws prescribes the manner in which this power of amotion is to be exercised: u No member to be expelled by a less number than two-thirds of the members present, the vote to be by ballot; no expulsion shall take place without giving the accused previous notice in writing to attend the board, and answer the charges preferred against him, a copy of which shall be transmitted to him at least six days before the time appointed for the hearing.” On Wednesday, the 5th January last, the complaint against Mr. Roberts was first officially laid before the board, when ,a comm¡ttee was appointed, by ballot, to examine his accounts, visit the paupers on his list, and ascertain if he admitted any contrary to the orders of the board. The time when the first order was taken did not conform to their bye-laws; for by the first article it is provided, that the stated meetings on Friday evenings shall be exclusively appropriated for the consideration of unfinished business, and no papers or new business shall be introduced, unless by consent of two-thirds of the members present. Non constat here, that this new business wasjntroduced by the consent of two-thirds. But waving this irregularity, and admitting it to be cured by the subsequent appearance and defence-of the accused. On Tuesday, the 9th nothing material occurred. On Tuesday, the 16th, the committee reported on his accounts, and specified twenty-six instances of improper charges. A copy of the matters alleged against him, was ordered to be furnished him by the secretary; and on the 19th, the copy was served. On Tuesday, the 23d, time was given to Roberts to make his defence, and a special meeting directed to be held on Wednesday, Ú\e 31st; notice was given to all the members to attend on that day. The meeting was convened ; Roberts heard in his defence ; and, thereupon, it was “ Resolved, that Mr. Roberts had violated his duty as a guardian of the poor;” yeas twenty-two, nays twelve. Here this proceeding should have stopped ; for this amounted to an acquittal, there not being the requisite mar jority to convict. If the specification is to be compared toan indictment, this was equal to a bill returned by a grand jury, ignoramus ; if to a final trial, then he was finally acquitted. But it bears a stronger resemblance to, and cannot be distinguished from, the impeachment of public officers under the Constitution of the United States and of this State, which require the concurrence of two-thirds of the members present. There nipt being a constitutional majority to convict, and the vote being taken on the whole specification, it became the duty of the board to pronounce, that Sylvester Roberts was acquitted of the charges exhibited against him. Judge Chase’s Trial, 268. But a different course was taken repugnant to their own bye-law, to the Constitution, and every principle of natural justice ; for on the 6th February following, the business is again resumed, and the board resolve, “that Sylvester Roberts be expelled in consequence of a violation of his duties as guardian of the poor.” Yeas 27, Nays 8. There was no new charge, no new specification; agreeably to the specifir , . ‘ , • r i , - cations preferred against him, no hearing of the cause de novo, no new' defence, nor was the accused called on to make one. Thus was he twice put in jeopardy for the same offences; condemned after he had been acquitted, and sentenced to expulsion for offences of which he had been acquitted. It is very evidentthatnewmembers attended andpronouncedsentence, who' had neither heard the evidence to supportthe charges, nor the defence of the accused, and whose votes produced a conviclion. The accused was not apprised that he was again to be put on his trial. An opportunity might have been taken of a-thin meeting, when his friends were absent, who would, perhaps, have been present had any notice been given of an intention to renew the inquiry. His enemies might have been notified, and attended with all their force, while his friends remained in total ignorance of so extraordinary and unprecedented a procedure. I do not impute intentional misconduct to the respectable board ; I only speak of the consequences that would naturally result; the opportunity that it would afford to intrigue, to remove an obnoxious member ; for if he was again subject to a trial, there would be no end to the pursuit; and if they had not obtained a majority of two-thirds on this second trial, I do not see what was to prevent a third, or any number his enemies might choose, until their efforts-were finally successful. The course taken is open to much observation. Fairness and the justice due to all men would have required, if he had been legally subject to a future trial, that, as he had been acquitted of every violation of duty, at an assembly to which all the members of the corporation had been summoned, and a reconsideration was to take place, that all should have had an opportunity of attending and of voting. If they had, the result might have- been different. This man had a vested right to his office, of which he could not be divested but by the judgment of his peers, or the law of the land. It has been doubted whether so serious a pro-**"*, eeeding as an amotion could take place, without a general summons of all the members, even in the case of a particular day appointed for the. general business .of the corporation, Kyd on Corp. 44-2 ; but under the circumstances of this case, a decent respect for the members who had voted for his acquittal, as well as a regard to impartial justice, required a general summons. It is unnecessary to give an opinion as to the uncertainty of this return; whether it ought not to have, in direct terms, stated a conviction on the specified charges; ^or a remova^ generally, for violation of duty would be bad, without specifying the particular instances, that the Court might judge of their sufficiency; for in every case of amotion, the return should shew precisely the cause and the proceedings, that the Court may judge of the legality of the one, and the regularity of the other. But, for the reasons above stated, this return is insufficient, and ought to be quashed. There must, therefore, be a peremptory mandamus.

Return quashed, and a peremptory mandamus awarded.  