United Bros. v. Williams

54 S.E. 907, 126 Ga. 19, 1906 Ga. LEXIS 303

• Court: Supreme Court of Georgia
• Decided: July 28, 1906
• Status: Published

Opinion

Cobb, P. J.

(After stating the foregoing facts.) The plaintiff was a member of the corporation at the time its charter expired in ■ 1903.- At the time the proceedings were had which purported to expel him from the association- there was no corporation in existence. The affairs of the former association were being carried on in an irregular, if not an illegal way. At that time the plaintiff was interested in the property of the association on account of having been a member at the date of the expiration of the charter. The officers and members were then without authority to take any action in the nature of corporate proceedings which would deprive the plaintiff of his property rights. The assets and .funds of the association were to be held by them until the association went into liquidation and a division took place, or until the charter was renewed in conformity to law. The proceedings purporting to expel the plaintiff from the association were therefore a nullity; for there was no corporation from which to expel.. He was a part owner with the other members in assets held by the old officers in trust for all the members. It is to be noted that a new charter for a new corporation was not granted. The old charter was renewed with certain amendments. The effect of the renewal of the charter was to carry the property of the old corporation then in the hands, of the officers and members into the corporation as created by the renewal of the charter. Every person interested in the assets of the corporation as a member on the date the old charter expired became a member of the corporation created by the renewal of the charter. It was renewed under the same name with all the powers the original corporation had, and others added thereto. The corporation as renewed was bound to admit into membership every person interested in the property of the corporation as it existed at the time of the expiration of the charter. The power to deal with the members, assets, and property of the association in a corporate capacity died upon the- expiration of the charter, but came to life with the renewal of the charter. Persons interested as members of the old corporation lost no rights by the irregularities, that took place between the expiration of the old charter and the granting of the new charter. When the corporation began business under the new charter with the funds and property of the old corporation as a basis for its operation, all members of the old corporation were entitled to the privileges and benefits which they would have had if the charter had not expired. As members of the old corporation, they h'ad no authority to deal with and expel the plaintiff at the time the alleged action was taken against him. He became a member of the new corporation created by the renewal of the charter. He is entitled to all the rights and privileges of a member. This has been denied to him. Undoubtedly he has a right of action against the corporation for refusing to admit him as member, but this remedy would not be adequate. He could recover damages, but damages are not desired. He wishes to be restored to membership, so that he may exercise the privileges and receive the benefits resulting from membership in the corporation. There are numerous decisions in other jurisdictions that mandamus is a proper remedy to be resorted to by one who has been wrongfully deprived of his privileges as a member of the corporation. Bacon on Benefit Societies (3d ed.), §§109, 442. In Waring v. Georgia Medical Society, 38 Ga. 608, it was held by this court that where a corporator has a clear legal right which has been violated by the corporation, and he has no other adequate remedy, he is entitled to relief by mandamus. See also Savannah Cotton Exchange v. Warfield, 54 Ga. 668. In the opinion in the Waring case, Mr. Chief Justice Brown says: “When a member feels that he is aggrieved or injured by the illegal or oppressive action of the body, it is his right to appeal to the courts for redress and protection; and it is the right and duty of the court to investigate such charges, when properly before it, and to judge of the legality of ■the action of the society in expelling a member or depriving him of any other legal right.”

The only reason alleged for the action of the corporation in declining to admit the plaintiff as a member is that he testified to the truth as a witness in a case where the association was a party. Even if the corporation had been in existence at the time of the alleged action purporting to expel him therefrom, this would not have been sufficient to justify an expulsion. He could not have been legally expelled for this reason, even if he had had a formal trial, after due notice, according to the by-laws of the association. Certainly, then, upon the renewal of the charter he can not be denied admission into the association on account of the purported action of the association at a time when it had no right to deal with the question of expulsion. There was no error in overruling the demurrers.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.