
    PEOPLE on the relation of WALKER, &c. against THE ALBANY HOSPITAL.
    
      Supreme Court, Third District;
    
    
      Special Term, September, 1871.
    Mandamus.—Demand Beeobe Suit.—Corporate Election.
    The continuous neglect of a hospital corporation, for a number of years, to hold any election of officers, affords a proper case for the iss.ue of a mandamus on the relation of a corporator, without proof of a special request.
    It is not a sufficient answer to the application to show that, since it was made, the officers have appointed an election, but have also assumed, by amending the by-laws, to fix a different time and different qualifications for voters than were prescribed by the by-laws at the time the election should have been held.
    Application for a mandamus.
    The relators, James E. Walker, Fred. Hinckel and Adam Cook, applied for a peremptory mandamus, to issue out of- the supreme court, against the board of governors of the Albany Hospital, to wit: Thomas W. Olcott, Archibald McClure and others, requiring the said board of governors of the Albany Hospital to notify and cause an election to be held for fifteen governors of said Albany Hospital, within sixty days immediately after the first Monday of August, 1871, as and in the manner prescribed by law; also requiring and commanding the said board of governors, more than ten days before the day fixed and appointed, to fix and appoint a place in the city of Albany where, and a time within sixty days immediately after said first Monday of August, 1871, when, the members of said Albany Hospital may, at a meeting thereof, elect from their own number, by ballot, and by a majority of the votes given, fifteen persons as governors of said Albany Hospital; also that the said Stephen Groesbeck, as secretary as aforesaid, give notice of the time and place of such election in three of the daily newspapers published in the said city of Albany for more than ten days ; also that the said Thomas W. Olcott, president of said Albany Hospital and of the board of governors thereof, or the said Archibald McClure, vice-president thereof, in case of his absence, within five days from the service of said mandamus, call a meeting thereof for the purpose aforesaid, appointing the time and place of such meeting, giving at least one day’s notice thereof in writing, specifying the business to be transacted thereat, as aforesaid, through the post-office; also that the said Stephen Groesbeck, the secretary of said Albany Hospital and of the board of governors thereof, on the day preceding such meeting, send notice of the time and place thereof, specifying the business to be transacted thereat as aforesaid, to each of the governors of said Albany Hospital, through the post-office.
    The moving papers showed that the hospital was chartered by chapter 431 of the Laws of 1849, commenced the transaction of the business authorized thereby within one year, and now owns real and personal property worth many thousand dollars.
    That the board of governors of said corporation, after such organization, had, before the year 1853, made certain by-laws relative to the management and disposition of the estate and concerns of the said corporation, to the admission of members, and designating directors and appointing the time, but not the place, for the annual meeting of the members of said corporation, for the election of governors thereof, as directed and authorized by said act, which said by-laws have not been repealed or modified, but are still in full force.
    
      That by said by-laws persons contributing fifty dollars became members for two years, and entitled to a ticket admitting a patient each year. The payment of larger sums made the donor a member for longer periods. By chapter 3 of the by-laws it was provided that “ on the first Monday of August, 1853, and on the same day in each succeeding year, between the hours of ten in the forenoon and one in the afternoon, an election shall be held in such place in the city of Albany as the board of governors shall have appointed, for fifteen governors of the Albany Hospital, to hold their offices for one year, and until others shall be elected in their places. Notice of the time and place of every such annual election shall be given by the secretary in three of the daily newspapers published in the said city for ten days. Every member who has contributed fifty dollars or more, by paying or securing the same by his obligation, which has been accepted, shall be entitled to one vote for each sum of fifty dollars so contributed. Members not in the city of Albany at the time of an election, may vote by proxy duly constituted in writing.”
    And it was further provided that the board of governors might fill vacancies, in the office of governors by appointment, and might choose a president, vice-president, secretary and treasurer. By chapter 3 of the by-laws it was provided that “the president may call a meeting of the governors whenever he shall think necessary, and may appoint the time and place of such meeting, giving at least one day’s notice thereof through the post-office;” also that “when the office of president shall be vacant, or when the president shall be absent, the vice-president shall succeed to all his rights and duties.” By chapter 6 of the by-laws, defining the duty of the secretary, it was among other things provided that “on the day preceding every meeting, • stated or special, he shall send notice of the time and place of such meeting to each of the governors through the post-office.”
    The moving papers farther showed that on certain days named, the relators respectively subscribed, contributed and paid to the treasurer of said Albany Hospital a sum named, to become a member thereof for a designated term thereafter, and thereby became and was a member thereof for the period designated, from the time of such contribution and payment, and thereby became entitled to the rights and privileges of such, according to its said charter and by-laws. “That no annual or other meeting of the members of said corporation, for the election of governors thereof, has been held within eight or ten years, nor have any governors of said corporation been, at any time or in any manner, elected since that time; but that, as vacancies in the office of governor or in the board of governors thereof have occurred for the past eight or ten years, the remaining members of said board of governors have, from time to time, supplied and filled such vacancies in the manner provided for by said by-laws.; that the governors elected and so appointed have, in consequence of and pursuant to the charter and by-laws of said corporation, held over and continued in office as such, because of a failure to elect then- successors. That the following persons are now governors of said corporation, to wit: Thomas W. Olcott, Archibald McClure, William H. De Witt, Jacob H. Ten Eyck, Erastus Corning, Robert H. Pruyn, J. W. Yosburgh, John Tweddle, John F. Rathbone, S. H. Ransom, George B. Steele, Jesse C. Potts, William H. Taylor, W. G. Thomas, Yisscher Ten Eyck and Angelo Ames.
    “That George H. Thacher is the mayor of the city of Albany, and Simon W. Rosendale the recorder thereof.
    “That Thomas W. Olcott is the president, Archibald McClure is the vice-president, Stephen Groesbeck is the secretary, and Yisscher Ten Eyck is the treasurer of said corporation, or the board of governors thereof, all acting as such, and chosen by the governors of. said corporation, as provided by the said by-laws thereof.
    “ That no annual or other election for fifteen or any governors of said Albany Hospital was held on the first Monday of- August, 1871.
    “ That the board of governors of said Albany Hospital did not, at any time prior to said first Monday of August, 1871, designate a place in the city of Albany where an election for fifteen or any governors of said Albany Hospital would be held on said first Monday of August, 1871; nor designate any time during said, day between ten in the forenoon and one in the afternoon when such election should be held, as deponent is informed and believes; nor was any notice of the time or place of any such election given by the secretary in three or any of the daily papers published in said city for ten days prior to said first Monday of August, 1871, or for any time prior thereto.
    ‘c That the election for governors of said Albany Hospital was not duly or in any manner held on the day designated and appointed by the act incorporating the same, and the by-laws passed pursuant thereto, to wit, the first Monday of August, 1871.
    “That deponents desired and prayed that the president and governors of said Albany Hospital notify and cause an election for governors thereof, within sixty days, immediately after said first Monday of August, 1871, in the manner provided by law, and according to the provisions of the charter and by-laws of said Albany Hospital.”
    . On the hearing of the motion the defendants read an affidavit that “although no election has been held for governors of said Albany Hospital for several years last past, such failure so to hold an election was not from any willful intent, nor for the purpose of preventing the members thereof from participating in an election for governors of said hospital; that no request has ever been made to this deponent to his knowledge, recollection or belief, nor to said board of governors to the knowledge of this deponent for the holding of an election of governors by any member of said incorporation, until .the commencement of the proceedings in the above entitled matter; that the time originally designated in the by-laws of said corporation for holding an annual election was the first Monday of August; that such time so designated was at a season of the year when many of the governors of said corporation, and also very many of the members of said corporation were usually absent from the city upon their ordinary summer vacation, and was not a favorable time for holding an election, and that no demand or request for an election having been made, and the affairs of said corporation being in prosperous condition, no election was held ; but this deponent expressly denies that such failure to hold an election was from any corrupt or improper motive on the part either of this deponent or the said board of governors.
    
      “ That at a regular meéting of the board of governors duly convened at said hospital building, pursuant to the notice on August 26, 1871, it was deemed expedient, by a majority of said board of governors being there present and voting therefor, to amend the bylaws of said corporation by appointing and designating the first Monday of October next, and in each year thereafter, as the time for holding such election ; said by-law was so duly amended, and the said last-mentioned day duly designated and appointed as the day for holding such annual election ; and it was further resolved at said meeting, by said board of governors, that an election for governors be held on that day in pursuance of said resolution and amendment, and that notice of such intended election is published in the journals of the city of Albany.”
    
      Counsel for the relators claimed that the meeting was not “duly” called, and that the by daws were not “ duly” or “legally” amended, and on their application the court ordered the motion to stand over two days to serve an affidavit, showing what they claimed to be the facts. They served an affidavit that the meeting was called by the secretary serving the following notice:
    “ Albany Hospital.
    A meeting of the governors of the Albany Hospital will be held this day at 12 o’clock, at noon, at the governor’s room in the hospital.
    S. (xBOESBEOK, Sed y of the Governors.
    
    Albany, August 26, 1871.”
    “That no notice of the alleged meeting of said gov-, ernors or board of governors was given to, or in any manner served upon, any of said governors, except the above.
    “That but eight of the governors of said Albany Hospital attended the alleged meeting of said governors or board thereof, on the”26th inst., and that the following amendment to the by-laws of said Albany Hospital was claimed to have been passed thereat.
    
      “Resolved, That section 1, chapter 2 of the “Bylaws, rules and regulations” of the Albany Hospital be amended so as to read as follows: ‘On the first Monday of October, 1871, and on the same day in each succeeding year, between the hours of eleven o’clock a. 3i. and one o’clock in the afternoon, at the hospital building, in the city of Albany, an election shall be held for fifteen governors, to hold their' offices for one year and until others shall be elected in their places. Hotice of the time and place of every such • election shall be given by the secretary in two daily newspapers published in the city of Albany for ten days. Every member who has contributed fifty dollars or more, either in money, building materials, or hospital supplies, shall be entitled to one vote for each sum of fifty dollars so contributed; but no rote shall be received at the next election on account of any sum contributed after the adoption of this amended section, or within thirty days next preceding any subsequent election. Members not in the city of Albany at the time of an election may vote by proxy duly constituted in writing.’ ”
    “ That no notice of an election for the board of governors of said Albany Hospital had been published or given, except a copy of said alleged amended by-law with a notice thereunder, as follows :
    Hotice.—An election for fifteen governors of the Albany Hospital will be held at the hospital building in the city of- Albany, on the first Monday of October, 1871, between the hours of eleven o’clock, A. m., and •one o’clock in the afternoon, in pursuance of the above resolution and amendment.
    By order of the Board,
    Stephen Gboesbeck, Secretary.
    
    Albany, August 26, 1871.”
    o
    ' In answer to this affidavit the defendants read' one by the secretary, that he in fact properly served the notice for the meeting of the board of governors on August 26, on the 25th.
    
      N. C. Moak and Henry Smith, for the relators;
    In addition to the authorities cited by the court; that the by-laws could not be amended to operate retrospectively, cited Grant on Corp., marg. p. 91. That the by-laws, when made, became a part of the charter, Grant on Corp., marg. p. 80 ; and could not alter the right to vote, Id., marg. p. 219. That the meeting being special, notice of the object thereof was necessary, Grant on Corp., marg. p. 359 ; Ang. & A. on Corp., 
      § 489, and cases cited. That no demand for an election was necessary before asking for the mandamus, 37 Penn. St., 237.
    E. J. Meegan, city attorney, for the mayor and recorder of Albany, governors ex-officio.
    
    
      S. O. Shepard, for the other defendants.
   Learned, J.

This is a motion for a mandamus to compel an election for governors of the Albany Hospital. The institution was incorporated in 1849, and by the act of incorporation the members, at any annual meeting to be held at such time and place as the bylaws shall appoint, are to elect fifteen persons as governors. These persons, with the mayor and recorder of the city of Albany ex officio, are to constitute the board of governors, and are to hold office for one year, and until others are elected in their places. According to the by-laws passed in 1852, and as they existed on August li, 1871, when these proceedings were commenced, the election of governors was to be held on the first Monday of August in every year. But in fact no election had been held for eight or ten years and none was had on the first Monday of August, 1871. The relators are members of the corporation, and would have been entitled to vote at an election if held on the day last mentioned.

They now ask the court to require an election to be held within sixty days from the first Monday of August last, in accordance with 1 Rev. Stat., 604, § 8.

It was not disputed on the argument that a mandamus would lie to compel an election of the officers of a corporation, other than municipal, if a proper case were made (Ang. & A. on Corp.,§ 700, and seq.).

On the part of the defendants it was urged that a mandamus was a prerogative writ issuing in the discretion of the court. That discretion, however, is of course a legal discretion. If the relator can obtain relief in other ways; if his right is questionable; if there be no necessity for the writ; in such cases as these the writ will not issue.

But when it is said that a remedy is in the discretion of the court, it is not meant that the court may arbitrarily refuse it.

And even if the court should in any case be aware that the controversy before it is one which had excited much feeling, and in respect to which it is unpleasant to decide, still the court ought not to decline to act, on the excuse that the remedy asked for is discretionary.

In the present case the relators’ right to vote is not denied ; and there is no other form of remedy of which I am aware. The question then must be, have they shown a necessity for the writ and entitled themselves to it. The defendants insist that a mandamus should not issue unless a demand has been made for the specific thing, the performance of which is the object of the mandamus, and unless there has been a refusal or conduct equivalent. As authority for this they cite Rex v. Brecknock, &c. Canal Co. (3 Ad. & E., 217, 221).

In that case certain owners of land might call on the canal company to execute certain works. If the company refused for six months the owners might construct them. The relators called on the company and the company said they would execute the works. They delayed. On remonstrance they said they would proceed if indemnified. On motion for mandamus to compel them to execute the works, held, that after the company’s consent there had been no direct refusal. The statement of this case shows that it is not analogous to the present. Negotiations had passed between the parties, and it did not appear that the company were not still intending to execute the works. They hesitated only because they asked to be indemnified, and the relators had not distinctly refused to indemnify. The case of Reg. v. Bristol & Exeter Railroad Co., 7 Jur., 233, is similar in character to the last. But in the present case the defendants had a duty to perform on a certain day. It certainly cannot be necessary for the members of a corporation to request the directors to hold an election. Their duty is to hold it without request.

If, indeed, it had appeared in this case by the opposing affidavits that the omission to hold an election was only accidental, an omission which had never occurred before, then it might have been urged with much force by the defendants that their attention should have been called to their neglect so that they might remedy it voluntarily. But the opposing affidavits give as reasons for not holding the election that the first Monday of August was not a favorable time and that the affairs of the corporation were in a prosperous condition.

It is, therefore, apparent from the affidavits of the defendants that the neglect to hold an election was not accidental. Indeed, a neglect for eight or ten years could hardly be accidental, although it. may not have been from any corrupt or improper motive. A neglect so long continued and occurring in so many instances is equivalent to a refusal.

It was further urged that the relators had only two or three votes. • But of course the right of the relators to have an election ordered does not depend on the number of votes they can cast. The member of a corporation who has only one vote has a right to cast that vote; and the officers of a corporation have no right to prevent him.

Whether others are or are not satisfied with the management of the corporation does not appear and is-entirely immaterial. This is not a question as to the manner in which the governors have managed the affairs of the hospital. Its decision does not touch that point in the least. It is only a question whether the members of the corporation shall choose the governors, as the law says that they shall.

The remaining objection taken by the defendants is that since the service of the papers they have ordered an election, and that, therefore, the mandamus is unnecessary. If, on the service of the papers for this motion, the defendants had simply given a regular notice for an election, I think there would have been good reason at least for suspending the decision in this case. But more than this has been done. By the bydaws, as they existed on the first Monday of August, 1871, it is declared that every member who has contributed fifty dollars. or more by paying or securing the same, shall be entitled to one vote for each sum of fifty dollars. On August 26 a meeting of the governors was held, at which eight were present.

At that meeting the bydaw was amended by changing the day of the annual election from the first Monday of August to the first Monday of October, and it was declared that every member who had contributed fifty dollars or more, either in money, building materials or hospital supplies, should be entitled to one vote for each sum of fifty dollars, and the notice of election published is stated to be in pursuance of this resolution and amendment. The mode of publishing a notice of the annual election is also changed by this amendment to the by daws from three newspapers to¿ two. By the statute (1 Rev. Stat., 604, § 8), when an election is not held at the regular day, it is to be held in sixty days thereafter, and the persons who are to vote are those who are entitled to vote at the annual election.

If, therefore, this amendment of the by-law is valid, it changes the test of the right to vote at the election; and gives persons a right to vote who had not that right on the first Monday of August. There may be great doubt whether this can be done. Besides, by 1 Rev. Stat., 603, § 6, no amendment to a by-law relative to an election is valid until it has been published two weeks, thirty days before the election. And it would seem that this by-law cannot be published according to that statute the proper length of time prior to the appointed day.

It is also questionable whether the right to an election within sixty days of the annual day can be thus taken away by a by-law. For if this by-law is valid, it is plainly in the power of the governors, before the first Monday of October, to amend the by-law again : appointing another and more distant day for the annual election. Thus they would prevent an election from ever taking place.' It is insisted also by the relators that the meeting of August 26 was irregularly called for want of a specific notice of its object. With regard to the validity of this amendment to the by-law it is not necessary here to decide.

Enough appears to show that there is doubt about it. The only notice of election is of one in pursuance of this resolution and amendment. If the election is held under that notice, therefore, the inspectors and the voters may be concluded, and may be prevented from asserting ‘that the only proper voters are those who might have voted on the first Monday of August. That notice of an election cannot, therefore, be considered a compliance with the duty imposed on the governors,— that of giving notice of an election within sixty days after the day appointed for the annual election, in case that fails.

I see no reason, therefore, why the mandamus should not issue. The time when the election shall be held within the sixty days, will be under the control of the governors ; and the question of who shall vote at the election will remain for the future decision of the proper officers. Nothing that has been here said is intended to ' control or influence that question.

Nor is the awarding of this mandamus any indication that the management of the hospital has not been in the highest degree wise and judicious. No evidence was produced on that point, and none would have been proper. It is to be hoped that whqn the members of this .corporation shall have had an opportunity to express their wishes as to the persons who shall control, and when they shall have fairly done this, controversy as to this charity will be at an end.  