
    Fraternal Mystic Circle v. State ex rel Fritter.
    
      Private corporation — Por mutual benefit of members — Member unlawfully expelled — Not entitled to mandanus to restore him.
    
    A member of a private corporation organized for the mutual protection and relief of its members, though, unlawfully expelled and excluded from participation in its benefits, is not entitled to a writ of mandamus to compel it to restore him to membership, • because:
    1. Such restoraiion is not an act specially enjoined by law.
    2. He has a plain and adequate remedy in the ordinary course of the law.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Franklin County.
    The relator commenced an original action in the circuit court for a peremptory ivrit of mandamus, to compel the Fraternal Mystic Circle to restore him to membership with all its privileges and benefits.
    A demurrer to his original petition having been sustained, he filed an amended petition, alleging, in substance, that the Fraternal Mystic Circle is a corporation organized under the laws of this state, for the purpose of the mutual protection and relief of its members, and for the payment of stipulated sums of money to the families of its deceased members. In the corporation is a small body known as the Supreme Ruling, which claims to be vested with and exercise the supreme power of the corporation for the management of its business. The Supreme Ruling holds but one session a year, and in the interim of its sessions, an executive committee of five persons, claims to be vested with all the powers of that body, except legislative powers and the power to • fix salaries of supreme officers. The constitution and bylaws of the corporation, provide no mode or right of appeal from a decision of the Supreme Ruling, or of the executive committee.
    The relator having all qualifications, became a member of tbe corporation and of tbe supreme ruling, and a. contributor to its -benefit fund, December 10, 1884. On January 9, 1885, he received from the corporation a certificate of membership and insurance, stipulating for the payment to named beneficiaries of $8,000.00, upon satisfactory evidence of the relator’s death; or the payment of a sum not exceeding $1,500.00, in accordance with rules governing the benefit fund, on satisfactory evidence of his total disability, and further, that it would pay to the beneficiaries seventy-five per cent, of all benefit assessments paid by him if he should die after being a member five years or more, it being, however, a condition to the obligation of the corporation, that the relator be a member in good standing, at the time of his death or disability.
    The relator performed all his duties as a member, and until February 3, 1892, he enjoyed all the rights and privileges of membership. At that time, against his protest and objection, he was denied the privilege of voting for officers and from attending the meetings, and from all participation in the affairs of the corporation. He has frequently demanded that said privileges be restored to him, but the demand has been refused, upon the ground that he had been expelled from the corporation. His said expulsion was illegal because contrary to the regulations of the corporation, in that he was never fully and fairly informed of the nature of the charges against him, nor served with notice of the time and place of trial, nor permitted to be fully and fairly heard, nor to know the names of his accusers, nor to hear the evidence offered against him, nor to offer evidence in his own behalf. The corporation has a large fund to which the relator has contributed, and in whose distribution he, as a member, would be entitled to share. The relator tendered all assessments made against members, prior to the commencement of the action.
    
      Issues were joined by answer and reply, and the plaintiff introduced evidence tending to establish the facts alleged in his petition. After hearing the evidence offered by the parties, the circuit court found in favor of the relator and ordered a peremptory writ of mandamus, restoring the relator to membership in the corporation.
    A petition in error is filed here for the reversal of the judgment of the circuit court.
    
      Merrick & Tompkims, and Cyrus Huling, for plaintiff in error.
    
      Nash & Lentz; Louis G. Addison and Lincoln Fritter, for defendant in error.
   Shauck, J.

Numerous questions are presented by the record and discussed in the briefs of counsel, but enough of the case has been stated to raise the only question which is'thought deserving of attention: Whether mandamus will lie for the redress of such grievances as are alleged in the petition.

Courts in other states have allowed the writ so frequently in cases quite similar to this, that some writers on benefit societies have stated it as a general rule, that if a member is wrongfully expelled from a society, he may be restored by mandamus. We have, however, to determine the question in accordance with the provisions of our own constitution and statutes, upon the subject. The legislation upon the subject of mandamus is in chapter two, of title four, of the revised statutes. While the procedure with respect to this form of relief has been brought approximately into subjection to the provisions of the code of civil procedure, the writ retains it extraordinary and prerogative character. It may be that the legislature has not attempted to deprive it of that character, because it has regarded itself as without power to do so. The constitution vests original jurisdiction in mandamus in the circuit court and in the supreme court. Through repeated decisions it has become well known that tbe general assembly cannot add to tbe original jurisdiction of those courts, because tbe constitutional grant is exclusive. An attempt to enlarge tbe purposes of tbe writ so as to make it a substitute for actions at law, and suits in equity would fail as an attempt to accomplish a forbidden purpose by indirection. This may account for tbe fact that tbe legislature has not attempted to add to tbe purposes for which tbe writ may be resorted to as they were known at the adoption of tbe constitution. It is doubtless because of tbe extraordinary character of tbe remedy that it is prosecuted in tbe name of tbe state, and original jurisdiction with respect to it is conferred upon tbe higher courts which have not original jurisdiction in private actions at law and suits in equity.

That tbe general assembly may increase tbe number of cases in which resort may be bad to this remedy, is not doubted. Indeed, it does so whenever it enacts a law which specially enjoins tbe performance of an act as a duty resulting from an office, trust, or station. But such laws do not change tbe character or purpose of tbe remedy.

Contemporaneously with tbe adoption of tbe constitution, tbe legislature defined mandamus as “a writ issued in tbe name of tbe state, to an inferior tribunal, a corporation, board or person, commanding tbe performance of an act which tbe law specially enjoins as a duty resulting from an office, trust or station.” This, like tbe other provisions of tbe statute, did not change tbe character of tbe writ or tbe purposes for which it may be invoked, but only reduced to tbe form of a statute, tbe commonly accepted definitions and principles upon tbe subject. This definition recognizes tbe public character of tbe action, and clearly excludes tbe idea that it may be resorted to for tbe purpose of enforcing tbe performance of duties in which tbe public have no interest. That interest is appropriately manifested by a statute enjoining the particular act as a duty resulting from an office, trust or station. “The object of the remedy by mandamus, is to compel public officers and private individuals, in matters relating to the public, to perform their public duties.” Tillson v. Commissioners of Putnam County, 19 Ohio, 415. This is only saying, that private actions are appropriate for the redress of private wrongs.

The definition shows with perhaps even more clearness, that mandamus is not a preventive remedy. It is essentially a coercive writ. It commands performance, not desistance. The real grievance of the relator is that he is unlawfully excluded from participation in the advantages of membership in the corporation, and the appropriate remedy would be that the corporation desist from such exclusion, or compensate him in damages for the wrong. The inference from the nature of the writ, that its extraordinary character is incompatible with the redress of private wrongs, is in accordance with the express provision of the statute, (Sec. 6744) : “The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. Assuming that the relator is wrongfully excluded from participation in benefits, he may recover in an action at law, the damage he has sustained. If that remedy would be inadequate, he would be entitled to an injunction to prevent his further exclusion. Whether his remedy would be at law or in equity, we need not determine here, for in this comparison both of those remedies are in the ordinary course of the law.

Some of the numerous eases cited by counsel for the relator, are in view of the provision quoted, opposed to his position, since they hold that in such case injunction will lie, to prevent the exclusion of the members. In some, the writ of mandamus has been allowed without consideration of the propriety of the remedy. None of them offers such reasons for its allowance as would be entitled to prevail against the objections stated, if it were yet an open question. It is, however, held in Freon v. The Carriage Co., 42 Ohio St., 30, that “mandamus is not the proper remedy to enforce the performance of a duty imposed upon the officers of a private corporation, organized for profit merely, where such duty is not specifically enjoined by law, and where there is a plain and adequate remedy either at law or in equity.” The point there, authoritatively decided, is according to a familiar rule of this court, stated in the syllabus.

The provisions quoted from the statute, and the case cited, justify the conclusion that the writ should not have been allowed in favor of the relator, because the act whose performance is commanded, is not specially enjoined by law, and because the relator, assuming that he has a cause of action, has a plain and adequate remedy in the ordinary course of the law. That conclusion is inferentially supported by numerous other decisions of this court in which the writ has been refused. We find no decision of this court in which the writ has been allowed in cases or upon principles inconsistent with the conclusions stated.

Although both remedies are administered in the same court, it has generally been held, that a suit to enjoin cannot be maintained where an action for damages would afford adequate relief. But the distinction in this respect, between mandamus and remedies in the ordinary course of the law, is obviously of much greater importance, since by the allowance of the writ of mandamus in forbidden cases, the circuit court and this court would in effect extend their original jurisdiction beyond the constitutional grant upon that subject.

Judgment reversed and original petition dismissed

Minshall, J., dissents.  