State ex rel. Wolf v. La Crosse Lutheran Hospital Ass'n

193 N.W. 994, 181 Wis. 33, 1923 Wisc. LEXIS 185

• Court: Wisconsin Supreme Court
• Decided: June 5, 1923
• Status: Published

Opinion

Owen, J.

The allegations of the petition fail to reveal any right on the part of the petitioners which may be enforced by mandamus. The defendant is a private corporation. According to the allegations of the petition, its articles of incorporation provide that the board of directors or trustees thereof have the control and management of its af-fáirs and have power to adopt and enforce reasonable rules, regulations, and by-laws to that end. Presumably no one has any voice in the control of the affairs of the corporation except the members thereof. The petitioners are seeking to enforce no right which accrues to them as officers or members of the corporation. Their right to practice their profession therein is subject to the license or consent of the board of directors. If they have the right to continue that practice indefinitely, it must be due to some contractual relations established between them and the hospital association. It is well settled that duties imposed upon corporations not by virtue of express law or by the terms of their charter but arising out of contract relations will not be enforced by mandamus. State ex rel. Burg v. Milwaukee Medical College, 128 Wis. 7, 106 N. W. 116, and cases there cited.

Petitioners seem to place considerable reliance upon the constitution and by-laws established for the government of the attending staff, and especially the provision requiring that “Unprofessional and unethical conduct and violation of the rules of this staff shall constitute a cause for expulsion. Any member against whom charges have been preferred shall be notified of such charges, and shall have the opporr tunity of appearing before the attending staff and the board of directors in joint meetings in his own defense before final action shall be taken. Three-fourths vote of the staff shall be necessary to recommend expulsion of a member.” These by-laws do not in any manner operate to deprive the board of directors of their power to exclude physicians from practicing in the hospital. They merely operate to give to the members of the attending staff a voice in the matter and to clothe them with advisory powers only. The provision is that “three-fourths vote of the staff shall be necessary to recommend expulsion of a member.” The staff may not expel, they may recommend. If they do recommend, the directors may still do as they please about expelling the member, and the board of directors may expel a member without any recommendation from the staff. This is a power, lodged in them by the articles of incorporation, and probably one which they could not delegate if they would. The result of petitioners’ contentions would be to place it within the power of those originally constituting the attending staff to determine who should not practice in the hospital — a rather important part of the management of the hospital association. We cannot ascribe to the constitution and by-laws established for the government of the attending staff any such effect. The power to manage the affairs of the corporation includes the power to exclude physicians from the privilege of practicing therein. If the exercise of this power constitutes a breach of contractual relations, the rights of the other party must be enforced in a proceeding to recover damages or to enforce specific performance. Mandamus will not lie. In Comb. Rep. (K. B.) 41, a mandamus to restore a surgeon to a hospital was denied by the court of king’s bench “because it is not in the power of the court nor is it a public office.” The writ was denied for a like purpose in People ex rel. Replogle v. Julia F. Burnham Hospital, 71 Ill. App. 246.

By the Court. — Judgment affirmed.