COURT OF APPEALS. 
THE PEGPLEWthe relation of FREDERICK 
W. BARTLETT, 
AGAINST 
THE MEDICAL SOCIETY OF THE COUN- 
TY OF 'ERIE."-’ ‘ 
POINTS OF RELATOR. 
STATEMENT OF FACTS. 
The relator was admitted to the practice of medicine 
and surgery by the New York Medical College, and 
regularly awarded his diploma by the Faculty thereof, 
on the 28th day of February, 1854. [Folios 2, 32, 33.) 
In April, 1855, he commenced the practice of his profes- 
sion at Buffalo, Erie county, and has continued the same 
at that place until the present time. In June, 1859, he 
caused an application for admission to membership in the 
Medical Society of the County of Erie to be presented to 
that body [fol. 4, 37.) The Society deferred action until 
the ensuing annual meeting of January, 1860 [fol. 5, 
38), when a committee was appointed to hold an inter- 
view with the relator and report upon his application. 
[fol. 40, 41.) The interview was had, and the committee 
reported that the relator had “devoted himself to the 
treatment of diseases of the throat and lungs, advertising 
his vocation in the daily and weekly journals of the city, 
and professing in the advertisment to employ the method 
of one Robert Hunter of New York; and that on being 
advised of the impropriety of this course he had with- 
drawn the advertisement and inserted in its place a card 
announcing his name, residence and speciality.”; The 2 
relator had stated to the committee his intention to 
abandon special and engage in general practice; (fol. 8, 
43,) and they recommended his admission, (fol. 9,43.) 
At the semi-annual meeting of June, 1860, the matter 
was taken up (fol. 7, 8, 44, 48.) A member of the So- 
ciety read at length a copy of the advertisement extract- 
ed from a city paper, which elicited a general discussion 
of its contents on the part of different members (fol. 44, 
48.) Some other objections were raised and pressed 
upon the Society, which have since been abandoned (fol. 
12, 25, 43, 44.) The result of the discussion was a vote 
of refusal to adopt the report of the committee (fol. 9,47.) 
At the annual meeting of January, 1862, the relator 
renewed his application by a communication in writing, 
in which lie asked to be “permitted to explain an v charges 
preferred or to meet any objections.” (fol. 10, 49.) The 
request was declined, and the application for membership 
rejected (fol. 10, 24, 48.) The last publication of the 
advertisement which was read at the meeting was in 
January, 1857 (fol. 3). The short card which succeeded 
it was discontinued in January or February, 1859, at 
which time the relator wholly ceased to advertise in anv 
manner (fol. 3). In the year 1858 the relator began to 
enter upon a general practice of his profession; and from 
the beginning of the year 1860 his special practice has 
been discontinued, and his entire attention bestowed on 
general practice (fol. 4, 43). 
Xo notice was ever given by the Society to the relator 
requiring him to apply for and receive a certificate of 
admission as a member (fol. 20). In February, 1863, 
the relator obtained at special term an order that the 
Society show cause why a mandamus should not issue, 
requiring it to admit him to membership. In March fol- 
lowing the motion was heard, and a peremptory man- 
damus granted; the order for which was affirmed at Gen- 
eral Term of the Eighth District. 3 
I. 
The admission of the relator is matter of strict legal 
right. 
The statute makes it the duty of every licensed physi- 
cian of the county to apply for membership in the medi- 
•cal society, and a failure so to do, after due notice given 
by the President of such society, subjects him to forfeit- 
ure of his license, and to all the legal disabilities of un- 
licensed physicians. (1 Rev. Stat. 856, § 1, 4th Ed. Tit. 
7, Chap. 14, Pt. 1.) Pamphlet page 12-13. (Unlicensed 
physicians on conviction of mal practice or immoral con- 
duct are deemed guilty of misdemeanor, punishable by 
fine and imprisonment. Laws of 1844, ch. 275, § 4.) 
The purpose for which medical societies are constituted 
is declared in the preamble (Act of April 10, 1813, chap. 
94, 1 R. S. 1204, 4th Ed. pamphlet, page 17,) to be “the 
diffusion of true science, and particularly the knowledge 
of the healing art;” an intention which embraces within 
its scope equally all licensed physicians—science and 
skill in whose vocation the law does not esteem more im- 
portant in the case of one practitioner (recognized as such 
by this act) than of another. 
By the act of April, 1810, (Pamphlet p. 21) amenda- 
tory of § 18 of the former act, respecting assessments for 
the procuring by the Society of a library and apparatus, 
and the encouragement of scientific discoveries, the words 
“collected from eacli member of the society a sum not 
exceeding three dollars in any one year,” are changed to 
“collected from each practicing physician or surgeon re- 
siding in the county or counties where such society is by 
law established, a sum not exceeding one dollar in any 
one year;” subjecting to taxation by such society all of 
that class of persons recognized at the passage of the act 
as physicians and surgeons, whether members of the 
society or not; and this on the ground necessarily that the 4 
use of the library and apparatus is designed to be given 
and the benefit of the scientific discoveries afforded to 
those subjected to the contribution. 
The law intends that every physician shall become a 
member of the society, and requires the society to admit 
him. There can be no legal cause for rejecting an ap- 
plicant regularly qualified to practice, other than such 
cause as would have been sufficient for his expulsion in 
the manner provided by law.—Exparte Paine 1, Hill 666 
—The People ex. rel. Gray vs. the Medical Society of the 
County of Erie, 24 Barb. 577, 1 P. S. 856-7. Pamphlet 
page 13. 
In Exparte, Paine, it was considered that the statute 
(Sec. 1 and 2) imposed a general obligation on the Soci- 
ety to receive every regularly licensed physician resident 
in the county as a member; and it was observed that the 
act did not, in terms, allow the society to make any ob- 
jection. The court esteemed it doubtful whether on any 
ground whatever the society could legally refuse admis- 
sion to a properly licensed, and resident applicant; though 
in that case the exception was made that where it clearly 
appeared that the character of the applicant was such, 
that if admitted he would necessarily become immedi- 
ately subject to expulsion for the offenses and under the 
form of proceeding specified in the statute, the court per- 
ceiving that the writ of mandamus would be ineffectual, 
in the exercise of its proper discretion would refuse to 
award it. 
The subsequent sections ol the statute (2 to 7 inclusive) 
carefully specify the offenses for which, and prescribe the 
form of proceedings by which, members can be divested 
of the franchise There must be preferred against the 
accused “specific charges of gross ignorance or miscon- 
duct in his profession or of immoral conduct or habits;" 
a presentment must be made by a two-thirds vote of the 5 
society; the charges delivered to the district attorney, by 
whom a copy is required to be immediately served on 
the accused with fourteen days notice of the time and 
place of hearing before the judges of the County Court; 
the accused to have process for witnesses, and the Court 
to determine on the charges from the evidence.—By- 
Laws Erie Medical Society, Art. 7, § 1, 2; Pamphlet p. 
10. 
In the matter of Smith, in remarking on these provi- 
sions, 10 Wend. 458, the Court said : “It (the Statute) pre- 
scribes a more formal mode of investigating any imputa- 
tions against (the society’s) members before the right to 
suspend or expel them shall be exercised; it essentially 
increases instead of diminishing their security.” 
It is submitted that the common law grounds of dis- 
franchisement, which might have been exercised by the 
Society prior to the statute, are comprehended within the 
terms “gross ignorance, or misconduct, or immoral con- 
duct or habits;” and that the statute designed to provide 
a single course of procedure by which alone the right of 
membership should be divested. 
The relator has been guilty of no offence for which he 
could have been proceeded against under the statute. 
He had done nothing exhibiting “gross ignorance or 
misconduct,” and “immoral conduct or habits” are not 
pretended. 
II 
Putting the statute aside and supposing the power of 
the Society to disfranchise to remain precisely as at com- 
mon law, this power is carefully defined and restricted to 
three causes : 6 
1st—Offences against the corporators duty to the cor 
poration as a member of it. 
• 2d—Offences of a heinous, infamous character affect- 
ing the corporator’s duty as a subject, being indictable at 
common law. 
3d—Offences compounded of the two. 
Grant on Corp., 264. 
2 Kent’s Cora., 297, 299. 
24 Barb., S. C. R, 578. 
Commonwealth vs. St. Patrick’s Be- 
nevolent Society, 2 Biuney, 448, 
450. 
Rex vs. Richardson, 1 Burr, 538-9. 
Bac. Abr. Corp. E. 9. 
Rex vs. Town of Liverpool, 2 Burr., 
732. 
Fawcet vs. Charles, 13 Wend, 476. 
Before the second cause can be made available, there 
must have been a regular conviction of. the offender at 
common law. The third cause must consist of an offence 
indictable at law, and a portion of the authorities require 
an actual indictment or conviction to have been had. 
Same authorities. 
The first cause is excluded in this case by the fact that 
the relator was never a member of the Medical Society, 
and could therefore be held to no specific duty towards 
it. The by-laws applied exclusively to members having 
notice of their requirements. The relator had not seen 
hem. Fol. 11. 
t 
Whatever may have been the character of the relator’s 
acts, the Society was accessory to them. The statute 
imposed upon the corporation the duty of giving the rela. 7 
tor notice within six months after his becoming located in 
Erie County, requiring him to become a member subject to 
lawful rules and regulations, under penalty of forfeiting 
his diploma. (Sec. 1, Pamph. 12.) 
This act, by the performance of which the Society w'as 
enabled at any time to control the conduct of the relator 
in conformity with any rightful authority which it pos- 
sessed, it wholly tailed to perform. If the Society volun- 
tarily refrain from taking the legal steps to obtain an 
influence over, the conduct of persons admitted to the 
practice of medicine and surgery, and in violation of the 
statute leave them without the advantages which are 
supposed to be derived from this kind of association, it 
is precluded from afterwards setting up an irregularity ot 
practice, the continuance of which may be reasonably 
referred to its own neglect, as a ground of disfranchise- 
ment. 
But if the relator had been a member of the Society 
subject to pts by-laws, the penalty of disfranchisement 
could not have been pronounced against him until con- 
victed of a third offence; the first offence merely sub- 
jecting him to a fine of five dollars. (By-Laws, Art. 7, 
§ 3 Pamph. page 9. 
Ill 
But let it be supposed against authority, (Grant on 
Corp. p. 247,) that a mandamus to admit differs unfavor- 
ably from a mandamus to restore, and that, on a 
return to the former the Society may show, that 
while at the time when the diploma was granted the 
applicant was duly qualified, since the granting thereof 
he has ceased to be a fit and proper person to 8 
become a member. If the diploma be not conclusive 
of the whole matter, presumptively at all events, the 
relator retains the qualifications attested by his diploma. 
The burden of establishing that these have been lost or 
vacated is with the Society; and it must show that it has 
regularly put the relator on his defence in the premises, 
and given him on full notice a fair trial and hearing. 
King vs University of Cambridge, 2. 
Ld. Rayrn. 1347-8. 
Grant on Corp. 245, 246, 248. 
Regina vs Bailiffs, Burgesses, &c. op 
Gippo, 2 Ld. Raym. 1240. 
Rex vs Town of Liverpool, 2 Burr. 734. 
Bentley’s case, Str. 557, 2 Ld. Raym. 
1334. 
Com. vs Penn. Beneficial Inst. 2 S. & 
R. 141. 
Com. vs Guardians of Poor, 6 Serg. 
Rawle 475, 2 Kent’s Com. 298. 
The Society must show in particular detail affirma- 
tively that all the proceedings were regularly and legally 
taken and conducted. 
Green vs. Af. Meth. Epis. Society, 1 
Serg. & Rawle 254. 
Ilex vs. Mayor of Liverpool, 2 Burr, 
732. 
Corn. vs. Guardians of the Poor, G 
Serg. & Rawle 475. 
Grant on Corp., 248. 
Bagg’s Case, 11 Coke 99 4th Res. and 
note. (1.) 
The relator was entitled to fully present and advocate- 
his claims before the body which assumed to exercise the 
function of allowing or rejecting his application. Same 
authorities. The informal meeting of the relator with a 9 
committee having no power goes for nothing. Non con- 
statffimit if the Society had yielded to his petition for a 
pers <5nal hearing, its own action would have been equally 
favorable with the preliminary report of the committee. 
No opportunity was given to the relator to meet objec- 
tions for the first time raised at the meeting of the Med- 
ical Society. Fols, 44, 45, 46, 47, 48, 49. 
.Not only must the form of proceeding be shown regu- 
lar, and the notice and hearing ample, but the grounds of 
exclusion must affirmatively appear as sufficient in law. 
The authority of the King’s Bench to determine on the 
legal sufficiency of alleged grounds for excluding a suitor 
from a corporate franchise has been uniformly asserted 
and exercised. It was never doubted. Though the cor- 
poration act upon them after regular investigation as 
sufficient cause, the court will adjudicate the subject on 
legal grounds. 
Iiex vs Richardson, 1 Burr. 540-1. 
Rex vs Town of Liverpool, 2 Burr. 731. 
Regina vs Bailiffs, Ac. of Gippo, 2 
Ld. Rayrn. 1240. 
Rex vs Dr. Askew et al. 4 Burr. 2189. 
Rex vs Barker, 3 Burr. 1206-7. 
Green vs Mayor of Durham, 1 Burr. 
131. 
Coni, vs Guardians of the Poor, 6 Serg. 
Rawle 475. 
1 Serg. & Rawle 254. 
Fuller vs Plainfield Academic School, 
6 Conn. 540-7. 
It (Joes by no means suffice that the causes of exclusion 
appear sufficient to the corporation; the law must justify 
them. Otherwise one of the most important rights which 
the law protects would be changed into a mere license, 
depending on the exercise of an arbitrary or interested 
discretion and pleasure. Same authorities. 10 
Leaving out of view any obligation which the by-laws 
may be deemed to impose on such persons as are amena- 
ble to them, what offence has the relator committed? 
Were the acts complained of against law? To advertise 
a professional calling maybe undignified,but it certainly 
is not illegal. 
For a physician to limit his practice to a certain class 
of diseases which he may best understand, and which he 
has made the subject of special study, is not only lawful, 
but so far from being evidence of quackery, itself is a 
badge of real science. 
As to the mode of treatment which the relator adopted, 
it was not based on any single proposition or theory; but 
was simply inclusive of a peculiar remedy deemed im- 
portant and valuable; as to which, since its introduction 
professional opinion has been divided. (Fol. 27, 28, 18.) 
The employment of this remedy is sanctioned by medical 
writers of established authority in the profession. Illus- 
tions of Pulmonary Consumption by Samuel G. Mnoton, - 
page 243-5; Watson’s Principles and Practice of Physic, 
3 Am. ed. 721; Wood’s Dispensatory, page 413; Braith- 
waite’s Retrospect, Jan’y to July, 1840, page 30; Idem, 
part 19, page 91; Idem, part 1G, page 119, 121, 124, 
et seq; (The Retrospect of Practical Medicine and Sur- 
gery, being a half-yearly journal containing a retrospec- 
tive view of every discovery and practical improvement 
in the medical sciences. Edited bv Wm. Braithwaite.) 
If the relator were in error, the law does not impose 
as the consequence of an error, honestly incurred, an 
absolute forfeiture of professional rights. 
IV 
But whatever estimate may be placed on the relator’s 
coarse for a certain period after his becoming located in 
Buffalo, the conclusive answer to all objections is that, at 11 
the time of his application for membership, and for more 
than two years prior to his final exclusion from the Soci- 
ety, his professional practice had conformed in every 
respect to the regulations insisted on by the Society. 
(Fols. 3, 4, 5, 6, 7, 8,11,19, 21.) Ilis advertisement had 
been discontinued. (Fols. 19,6, 3.) His special practice 
was changed to a general practice. (Fol. 3.) He had 
subscribed in writing to the code of ethics, and had 
observed it. (Fol. 7, 11.) His practice was regular and 
respectable. (Fol. 13, 19, 30, 31, 32.) He had always 
professed to hold to the Allopathic system. (Fol. 19, 32.) 
Had never been associated with any but regularly edu- 
cated physicians. (Fol. 19.) His obnoxious card, pub- 
lished in ignorance of the Society regulations, had disap- 
peared five years before the final application. (Fol. 48.3.) 
The Society having acquiesced in the relator's course 
of practice while it continued, could not six years after 
the offence had ceased, set up the same as accompanied 
by an absolute forfeiture of the relator’s rights; as per se 
a final repudiation of the professional character. There 
can be no color of authority for the position that without 
notice, or warning, or any form of trial, or opportunity 
offered to correct his course, if erroneous, the rights of 
the relator became at once divested beyond remedy; 
that the acts complained of in and of themselves worked 
a permanent and final disqualification to membership. 
Y 
The Medical Society was legally incapable under the 
statute by which the same was incorporated of restraining 
by a by-law under penalty of disfranchisement a member 
of such corporation, (a fortiori a person not a member) 
from giving publicity to his professional calling bv an 
advertisement or card. 12 
The affidavits in opposition, condensed, make a single 
proposition : that by the code of medical ethics engrafted 
in the bye-laws of the Medical Society and made a part 
thereof (considered as the best evidence of medical opin- 
ion) it is esteemed as an unprofessional act for a prac- 
ticing physician to make himself, or any special charac- 
ter of his practice, known to the public through any form 
of public advertisment. Whether this proposition be 
sound or not, as a mere matter of ethics, binding, if at all, 
in conscience, the Medical Society is not invested by the 
statute with any legal power to require compmlsorily the 
conduct of members to be regulated in conformity with 
this opinion. The Society was organized, endowed with 
corporate rights, with the object set forth in the preamble 
of “contributing to the diffusion of true science and par- 
ticularly the knowledge of the healing artit is empow- 
ered to hold meetings annually or oftener in the interest 
of medical science; to elect an annual delegate to the 
State Medical Society; to admit students to practice; to 
hold property real and personal of a value not exceeding 
$1000, and to collect an annual tax of $1 from each phy- 
sician of the county for the purpose of procuring “a med- 
ical library and apparatus, and for the encouragement of 
useful discoveries in chemistry, botany and such other 
improvements as the majority of the Society shall think 
proper.’* 
Beyond the scope of these general objects of its incor- 
poration, the Society has no powers. The People vs. 
Utica Ins. Co., 15 Johns., 383, Halsted vs. Mayor, &c-., 
of New York, 3 Com., 433, 2 Kent’s Com., 298, Rev. 
Stat. Tit. 3, Chap. 18, Pt. 1, sec. 1-2,1 R. S. 1172, 4th ed. 
And in aid of these objects, and to be construed in ac- 
cordance therewith, it is enacted that the societies may 
make such by-laws and regulations relative to the affairs, 
concerns and property of said societies, relative to the ad- 
mission and expulsion of members, and relative to such 
donations and contributions as a majority of the mem- 
bers, at their annual meeting, shall think fit and proper, 13 
provided that such by-laws, rules and regulations shall 
not be contrary to nor inconsistent with the Constitution 
and Lawrs of the State or of the United States. 
The power to make by-laws relative to the admission 
and expulsion of members gives to the Society no right 
of general legislation over the personal conduct of mem- 
bers. The Society cannot in its pleasure erect into a 
cause of expulsion the breach of a regulation which is 
foreign to the objects and concerns of the Society. The 
power to make by-laws is construed as an authority con- 
ferred for the purpose of enabling the corporation to 
accomplish the objects of its creation; and the power in 
its exercise is to be limited to such objects and purposes. 
Ang. A Ames on Corp. 268, 2 Kent 
298. 
Grant on Corp. 76, People ex rel. 
Gray vs Med. Soc. of Co. of Erie, 24 
Barb. 575. 
This Society has nothing to do with the medium by 
which a member shall make himself known to the pub- 
lic. And it is no condition, expressly or impliedly an- 
nexed to the enjoyment of his franchise, that this shall 
be by a specified agency not in violation of law rather 
than another equally lawful. The functions of the So- 
ciety relate to other and distinct objects, and the same 
are distinctly specified. 
2 Kent's Com., 298-9, and cases cited. 
2 Binney, 441. 
Ang. & Ames on Corp., 412, 413, 414.