Bryant v. District of Columbia Dental Society

26 App. D.C. 461, 1906 U.S. App. LEXIS 5112

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 4, 1906
• Docket: No. 1609
• Status: Published

Opinion

Mr. Justice Duell

delivered tbe opinion of the Court:

Appellant, Emory A. Bryant, applied for a mandamus to compel tbe District of Columbia Dental Society to- restore him to bis membership therein. To bis petition tbe society filed an answer, which was demurred to. The demurrer was overruled, with leave to appellant to plead over; but be elected to stand upon bis demurrer. Thereupon an order was made dismissing tbe petition for the writ, and from that order this appeal was taken.

Tbe record shows that appellant was a practitioner of dentistry in tbe District of Columbia, and a member of tbe District of Columbia Dental Society. At a stated meeting of the society held on April 19, 1904, and attended by appellant, be was expelled by a vote of thirty-nine to fifteen. Tbe by-laws of tbe society gave it authority to expel a member. Section 1 of article 3, relating thereto, is as follows: “Any act of special immorality or unprofessional conduct alleged to have been com- ■ mitted by a member shall be referred to a special committee of three, who shall examine into tbe case and report at the next regular meeting. Whereupon, if tbe charge has been sustained, tbe offending member may, by a vote of two thirds, be reprimanded or expelled, provided the accused shall have an opportunity for defense before final action is taken on his case.”

The facts, circumstances, and incidents leading up to the expulsion, generally stated, are these:

The District of Columbia Dental Society was incorporated under the District laws with the object, as stated in its certificate of incorporation, for “the advancement of the dental profession and the promotion of social intercourse and kindly feeling among its members.” It seems that Congress, in 1892, provided by statute (27 Stat. at L. 42, 43, chap. 89) for a Board of Dental Examiners to be appointed by the District Commissioners. The board was given power to- license dentists to practise in the District. By an amendment to the original act the conditions upon which a license could be granted by the board to dentists coming from other localities were altered. These conditions apparently did not suit the views of the Board of Dental Examiners. They sent out a circular letter suggesting to the boards of the various States and Territories that they certify more than the act of Congress required in order to admit dentists to practise in the District of Columbia without undergoing an examination. This action of the board did not meet the approval of the appellant, who addressed a letter to the Commissioners of the District of Columbia objecting to the circular letter and stating in part:

Now, Mr. Commissioners, I object to the circular, first, as the one who drafted the law; second, as the one through whose efforts it was passed; third, for the fact that it is a misstatement of facts; fourth, that it discredits a law these men are there to enforce; fifth, that its effect, if left alone, would be to nullify the attempt to get national interchange of dental licenses, by-means of having the same law in every State and Territory in the Union; sixth, that the action of this board is unprecedented, unethical, unprofessional, false to its office and.the profession it represents and the oath they took when they accepted their offices.

I suggest, Mr. Commissioners, that your honorable body direct the Board of Dental Examiners of the District of Columbia to withdraw this circular at once by due notice to those to whom they have sent the same, and issue a new circular, based upon facts, truth, and honesty.

Very respectfully submitted,

Emory A. Bryant.

The members of the Board of Dental Examiners were not only officials of the District, but were Dr. Bryant’s fellow members of the dental society.

It further appears that legislation of interest to the dental profession was pending in Congress, and that the members of the District society had different views upon such legislation. The appellant did not hesitate to state his position and criticise his fellow members in terms more forcible than polite. He sent letters to various parties, among others to the president of the National Dental Association, in one of which, referring to his fellow members of the District society and their course relative to the proposed legislation, he wrote:

Of all the damn fool moves I ever saw, this latest takes the cake. I hope they will be able to get their bill, and then I know one man who will not be the man. The local disturbing conditions is now transferred from the local to the national body, and if there is such a thing as justice in the national asso., it will be short and sweet. If personal animosities are to be the backbone of legislation for the profession, the quicker the thing is known, the better it will be for all hands.

There is no one on earth that deplores the personal fight here more than I do, but I am the last one on earth to stop fighting the filth that has control in this locality. Like my friend, Senator Tillman, “When I have to handle manure, I do it with a pitchfork.” I do not mind them fighting me personally so long as this does not injure anyone but myself, but when it comes to using my profession as a mop to swipe me with at the sacrifice of my profession or my friends, that is another matter.

I had intended to drop the matter when they had succeeded in getting their bill indorsed by the Southern branch in the first instance, but when they came back a second time, and the matter became by their own doing, that is where I change my tactics and trouble begins. I once before told them “if it was politics they wanted, I would give them all they wanted and a damn sight more before I was through with them,” and I kept my word. I just give you the tip, “there will be hell to pay” before this thing ends. I am not engaged in fighting men, but I am out for “beans” on their principles and motives. “The black flag is up, and I have nailed her to the top mast.” No quarter will be asked, or will it be given. A fair field and no favors, is all I ask. I will sign my name in full to anything I say or do. I am not under cover, but out in the open.

Sincerely and fraternally yours,

The writing of these letters was followed by the preferring of charges against appellant by members of the society. The first of these is as follows:

Washington, D. C., March 15, 1904.

We, the undersigned, do hereby charge Dr. Emory A. Bryant, a member of this society, with the following acts of unprofessional and unethical conduct:

1st. Under date of March 10, 1904, he wrote the Commissioners of the District of Columbia, charging the board of examiners, every member of which is a member of this society, with unprofessional and unethical conduct, false to the oath taken by them and to the profession they represent, and insinuates that they have issued a circular letter at variance with truth and honesty.

2d. That he interfered with the work of a regular committee appointed by this society on legislation.

3d. That in the evening of February 19th, at an adjourned meeting of this society, he said that the members of this society were too small cattle for him to deal with, and before taking his seat characterized the members as being a lot of cats.

4th. That he has been a disturbing element in this society for the past twelve months.

(Signed) Jno. H. London,

C. W. Appier,

M. E. Einley,

W. E. Dieffenderfer.

A certified copy of the letter to the District Commissioners was filed with the charg'es. A portion of this letter we have quoted.

The second charges read:

It is hereby alleged that the accompanying letters, written and signed by Dr. Emory A. Bryant, a member of this society, evidence unprofessional conduct on the part of the said Bryant in this,—that the said letters are, (a) false in a number of material statements; (b) that they are vicious in tone; (c) that they disclose a mischievous and unnaturally antagonistic and evil purpose; (d) that they contain threats to carry on a contention by him, the said Bryant, which is discreditable to the dental profession, dishonoring to the Nat. D. Asso., and degrading to this society, and which contention, if further pursued in the spirit and manner adopted by the said Bryant, is calculated to embarrass, discredit, and defeat express worthy .objects of the profession.

In connection with this alleged unprofessional conduct of Dr. Emory Bryant, your attention is invited to the first ten lines of article 3, section 1, of your by-laws.

(Signed) M. E. Einley,

Wms. Donnally,

D. N. Rust,

. H. M. Schooley.

Accompanying these charges was the letter, among others, written to the president of the national association, from which we have quoted.

Upon receipt of these charges the president appointed a special committee of three, in accordance with the terms of the by-laws, to examine into the case and report its findings at the next regular meeting of the society. The appellant objected to two of the members named, with the result that the president substituted two others in their places, to whom appellant made no objection. The charges were then read to the society and referred to the committee for consideration and report.

The answer sets out the further steps that were taken, and, in view of the demurrer, they must, so far as they state facts, be taken as proved. . It is recited that, after the committee was appointed, “that, thereupon, the charges hereinbefore set forth having been read by the secretary of said society, they were by the president referred to said committee for consideration and report; that thereafter and before the next regular meeting, which was set for April 19, 1904, the said committee met and determined upon the method of procedure to investigate said charges, which required that all allegations made in support thereof should be submitted in writing, that the petitioner should have a full and complete copy of the charges and specifications, and of all allegations in support thereof, and should be given ample opportunity to meet the same by counter-statements, and by such statements as he, himself, desired to make; that petitioner raised no objection whatever to said mode of procedure, and did not demand the right to have witnesses sworn or cross-examined, or to rule out testimony taken, but in all things acquiesced in the method of trial adopted by said committee; that copies of the charges and specifications, and of all statements made in support thereof, were furnished to the petitioner, and that he replied to the same in writing, submitting two voluminous statements and many documents in defense to said charges; that petitioner admitted the authorship of the letters hereinbefore referred to, and set forth as exhibits; that petitioner, having been given full and ample opportunity to make his defense, and having availed himself of the same, and having entered no objection to the method and mode of investigation pursued by the committee, the committee thereupon proceeded to consider said charges separately and took a separate ballot as to eacb charge, which said balloting resulted after the consideration of the evidence taken in support or defense of each charge, in the committee unanimously finding every charge made sustained, with the single exception of charge designated as charge 4. That on the 19th day of April, 1904, at the next stated meeting of the defendant corporation, at which the petitioner was present, and in which he participated, the aforesaid committee made its report, its chairman having first read in open meeting the charges which had been preferred against the petitioner as aforesaid, the report of said committee,—as follows, to wit:

“We, your committee appointed to investigate the charges and allegations preferred against Dr. Emory A. Bryant, an active member of this society, beg leave to report that we have carefully considered the charges and allegations, and the answers thereto, and, after due consideration, submit the following as our finding, to wit:

“In regard to the charges preferred by Drs. London, Appier, Finley, and Donnally, charges 1, 2, and 3 are sustained; charge 4 is not sustained.

“In regard to the allegations signed by Drs. Finley, Donnally, Bust, and Schooley, we find that allegations marked a, b, c, and d are all sustained.”

It is charged as error that the court should not have dismissed appellant’s petition, but should have granted the peremptory writ of mandamus, and sustained the demurrer for the following reasons:

“(a) Because the acts alleged against him were not within the provisions of the by-laws.

“(b) Because the alleged evidence of violation of the bylaws was not submitted to his triers, the society.”

Beferring to the first ground, we consider that the rule laid down in United States ex rel. De Yturbide v. Metropolitan Club, 11 D. C. App. 180, is controlling in this case. It is there said: “There is no longer any question of the right of a corporation, such as the respondent in this ease, to make by-laws, even in the absence of express statutory power, and to exercise tbe power of a motion, as incident to the corporation.”

Tbe ground upon wbicb tbe expulsion of appellant was predicated was tbe violation of a by-law made for tbe good government of tbe club, and, as this court said in tbe De Yturbide Case, it “being an act against bis duty to tbe corporation, tbe respondent not only bad tbe legal power to adjudge wbat constituted conduct unbecoming a gentleman, but it was tbe only tribunal wbicb could exercise such a power.”

In tbe present case tbe charges were based upon a violation of tbe by-law providing for expulsion of a member for “unprofessional conduct.” Tbat one set of charges stated tbat tbe acts were “unprofessional and unethical” does not, as we look at it, take tbe charge outside tbe by-law. Tbe question tbe society was called upon to determine was as to tbe acts charged being “unprofessional.” Tbe appellant would have an unprofessional act, as tbat term is used in tbe by-law, defined in its strictest sense. We think in this be is incorrect. Tbe society is a semi-social organization. One of its objects is to promote social intercourse and kindly feeling among its members. Tbe letters written by appellant characterizing tbe acts of bis fellow members did not tend to promote tbe objects aimed at by tbe society. In them we find a definition of wbat be himself considered an “unprofessional” act. In bis letter to tbe District Commissioners be charged tbat bis fellow .members composing tbe Board of Dental Examiners bad been guilty of “unprofessional” acts in sending out tbe circular to wbicb we have referred. Tbat letter, compared with tbe letters written by him, is most inoffensive. But to charge, without justification, an act of his fellow members, though tbat act was done in an official capacity, as “unprofessional, false to its office and tbe profession it represents and tbe oath they took when they accepted their offices,” is at least sufficient to warrant us in refusing to bold tbat tbe society, in treating such charges as warranting tbe expulsion of a member of th« society for an unprofessional act, has exceeded its power or been guilty of fraud or bad faith. Tbe language used by this court in United States ex rel. De Yturbide v. Metropolitan Club, supra, is directly in point.

“Whether the conduct of the relator in accusing the lady, a daughter of a member of the club, within the club, to members thereof, of writing anonymous letters, was such as made it unbecoming a gentleman within the meaning of the by-law, was a question, as we have seen upon the authorities already cited, that could only be determined by the corporate authorities; and that it is only where it is made clearly to appear that such determination was ultra vires, or made contrary to good faith, that the courts can interfere. The courts cannot sit as appellate tribunals to review the judgments of the corporate authorities in such cases. The parties concerned, having constituted their own domestic tribunal for the trial and determination of questions of alleged violation of purely corporate duty, they must abide such determination, unless the authority be transcended, or there be fraud or bad faith shown.”

2. A more serious and difficult question is whether the appellant was accorded the trial provided by the by-law. We have shown that the proper committee was regularly appointed, and that its personnel was satisfactory to appellant. The regularity of the hearing before that committee is not questioned, and it is not claimed that appellant was not accorded every opportunity to present his defense before the committee. Upon the coming in of the committee, which reported all but one of the charges proved, it was moved and seconded that the appellant be expelled. A motion was also made and seconded that all of the evidence in the case be submitted. That motion was defeated. It would appear as though its production was not very strongly insisted upon, for the record is silent as to how the vote was taken, or whether any members other than the mover and seconder of the motion were in favor of it. To legal tribunals accustomed to hear and decide cases on evidence duly presented it seems improper in the highest degree to refuse to listen to the evidence. It must be remembered, however, that the members of the society are laymen, and not accustomed to legal proceedings. When appellant asked for fifteen minutes in which to make a statement or defense he was accorded double the time he asked. He made no attempt to get the evidence before the society, but largely occupied the time in personal attacks upon his fellow members. Furthermore, the charges were mainly based upon letters admittedly written by appellant. It is not a violent presumption to assume that the members were familiar with the letters and did not care to consider them further. His tongue seemingly was as ready as his pen, and his employment of the half hour accorded him was doubtless greater than that of his fellow members. He had taken the sword in his hand, and he knew that he was to perish by the sword. Forms did not trouble him. His was a lost cause, and he knew full well that no rehearing of the evidence would avail, and he evidently preferred what might be termed a heart-to-heart talk rather than to employ his time in stating his defense and how it had been made out before the committee. The learned justice before whom the case was tried, in his opinion, correctly interprets the by-law under which the expulsion proceedings were had. He says “that when the charges have been preferred in proper manner against a member of the society, they shall be referred to a special committee of three, who shall examine into the case and report at the next regular meeting. Now, that was done in this case. There is no question about it, as I understand or remember as to the sufficiency of the specifications of misconduct, and, so far as the matter of form went, they were referred to the committee of three, who did examine and who did report. ‘Whereupon/ the by-law proceeds, ‘if the charge has been sustained, the offending member may, by a vote of two thirds, be reprimanded or expelled.’

“Now, I do not believe that that includes the rehearing by the whole society, that it is simply, as the language indicates, a report made by the committee to the society, upon which the society acts either affirmatively or negatively,—either accepts it or rejects it,—and a member of that society, in determining his conclusions as to that report, would have the right to call for the testimony upon which the committee based its report, or would have the right to question the accuracy of the report; but that is a right- which is for the members of the society before they vote ■upon the report. This man, the doctor, had had his hearing, had his notice, and an opportunity to be heard by the committee, and an opportunity to be heard in his defense before the association. But I do not read this as meaning that the association shall rehear the evidence upon which the committee’s report was based. They have the right, as any legislative body has, to act upon the report of the committee which has been appointed according to the rules of the order,—the society,—and they can act with or without information. They can vote blindly, if they please, for it, or they can insist on further information ; but it is for them to say whether they will accept or reject the report.”

We think nothing further need be said. The De Yturbide Case is controlling, and it is supported by the weight of authority.

It follows that the demurrer to the answer was properly overruled, and, therefore, the order of the court below denying the prayer for the writ of peremptory mandamus and dismissing the petition must be affirmed, with costs, and it is so ordered.