When the matters in controversy in Burke v. Badlam originated, the legislature had acted in regard to the assessments of property, and enacted as follows:

"Shares of stock in corporations possess no intrinsic value over and above the actual value of the property of the corporation which they stand for and represent, and the assessment and taxation of such shares and also of the corporate property would be double taxation. Therefore all property belonging to corporations shall be assessed and taxed, but no assessment shall be made of shares of stock; nor shall any holder thereof be taxed therefor." (Pol. Code, $ 3608.) (It may be remarked here that the constitutional validity of this section was affirmed in Burke v. Badlam. (See 57 Cal. 602.)

The terms 'value' and 'full cash value' mean the amount at which the property would be taken in payment of a just debt due from a solvent debtor;" and "the term 'personal property' includes everything which is the subject of ownership not included within the meaning of the term real estate."

[Each person (including corporations) also must furnish a statement of all property (including franchises) to the assessor, who is to enter the franchise and its value separate from the other property; the assessor is to turn this statement over to the board of supervisors, who is to equalize all assessments.]

It appears from the record in this case that the board of supervisors, in the exercise of its power of equalization, assessed the franchise of the water-works by taking the aggregate of the market value of the shares of stock in the company on the 7th of March, 1881, and deducting therefrom the value of the real and personal property of the company, and held the difference to be the value of the franchise. The market value of the shares was shown to the board by the testimony of witnesses. Such a mode of arriving at the value of the franchise appears to have been adopted by the assessor in San José Gas Co. v. January, 57 Cal. 614, and this mode was held to be within the powers vested in the assessor. It was also impliedly approved as a correct mode in Burke v. Badlam, above cited. (See Commonwealth v. Hamilton Mfg. Co., 12 Allen 306.)

*

There is a further point which we think it proper to notice. It is contended that good-will enters into and forms an element in the value of the shares of stock. No case has been produced to us, nor have we been able to find any holding or even intimating that this is so. We find no such element of value in the least hinted at, by any one who has written on the subject, nor has any such been called to our attention. We can not recognize any such element as giving value to shares in a trading corporation. It would be strange to predicate goodwill as pertaining to or extending to an abstraction, to an "artificial being, invisible, intangible, and existing only in contemplation of law." Our conclusion is that the board of supervisors, in its capacity of a board of equalization, had jurisdiction of the person and subject-matter in the matters involved in this cause, and the judgment of the court below is affirmed.

Ross, MYRICK, MCKINSTRY, MCKEE and SHARPSTEIN, JJ., con

curred.

MORRISON, C. J., took no part is this decision.

Note. See South Pacific R. Co. v. Orton, 32 Fed. Rep. 457, infra, p. 354, and §§ 441-3, 680-1, infra; 1901, Detroit Citizens' Ry. v. Detroit, 125 Mich. 17, si Am. St. I. 5-9.

Sec. 24. (2) And particularly: This primary franchise belongs to the members in their individual capacity rather than to the corporation itself, and is inalienable except by consent of the

state.

THE STATE, EX REL. J. WARING, PLAINTIFF IN ERROR, V. THE GEORGIA MEDICAL SOCIETY, DEFENDANT IN ERROR.1

1869. IN THE SUPREME COURT OF GEORGIA. 38 Ga. 608-631; 95 Am. Dec. 408.

[Waring filed a petition for writ of mandamus, to restore him to membership in the Georgia Medical Society, upon the ground that the action of the society "in expelling him from membership and depriving him of his right and franchise as a corporator in said corporation is unconstitutional and contrary to law." The society had authority to make such a constitution and by-laws not repugnant to the laws of the state or the United States, and these provide (among other things) that members "shall be gentlemen of respectable social position;" and "any member who shall be guilty of ungentlemanly conduct during the session of the society, or who shall conduct himself, out of the society, in such a manner as would render him ineligible to membership, shall be expelled from the society according to the wishes of two-thirds of the members of the society present, provided that in every instance specific charges be set forth and handed to the individual at least one month before the society takes action thereon." The charges made were that Waring had become surety for Richard White, a person of color, under indictment for larceny, who had been elected clerk of the court, in opposition to the wishes of the entire respectable community; and that he had also become surety for certain other persons of color, who were charged with riot, in such manner as would render him ineligible to membership; also for charging for a dispensary prescription, which was allowed gratis by the city; also consulting with a physician not a member of the society, contrary to one of the rules forbidding this. Dr. Waring was given proper notice and expelled by the proper vote. The society answered, claiming the court had no jurisdiction, and also setting forth the facts as to the charges, notice and expulsion, as above given. Waring moved to quash this answer as being insufficient; the lower court overruled the motion, and Waring sued out his bill of exceptions to this court.]

1 Statement of facts condensed; arguments omitted.

BROWN, C. J. 1. It was insisted, in this case, that the Georgia Medical Society was in existence long before it was incorporated, and that its objects were in no way changed by its application for and acceptance of its present charter from the state. This may be very true, but its legal responsibilities were changed by the acceptance of the charter. While it remained a voluntary society, the courts had no jurisdiction over it, if it violated no law of the state, and its members had no property in their membership which the law could protect. But its acceptance of the charter subjected it to the supervision of the proper legal authorities having jurisdiction in such cases: 4 Wheat. 674-5, 6 Conn. 544-5.

2. When the voluntary society accepted the charter, it became a private, civil corporation, and the corporators, then in being, acquired a property in the franchise, and every person who has since become a corporator has acquired a like property. The property which the corporator acquires is not visible, tangible property; but it is none the less property, because it is invisible and intangible. It is not a corporeal hereditament; but it is incorporeal. Blackstone, in his Commentaries, volume 2, page 21, says: That incorporeal hereditaments are divided into ten sorts; one of these consists of franchises. Bouvier, in his Law Dictionary, volume 1, page 593, says the word franchise has several meanings, one of which he gives as follows: "It is a certain privilege conferred by grant from the government and vested in individuals. Corporations or bodies politic are the most usual franchise known to our law." The law books are full of the doctrine that persons may have a property in incorporeal hereditaments, franchises, etc. Property, says Bouvier, volume 2, page 381, is divided into corporeal and incorporeal. The former comprehends such property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter consists in legal rights as choses in action, easements and the like. Blackstone says, volume 2, page 37, it is likewise a franchise for a number of persons to be incorporated and subsist as a body politic, with power to maintain perpetual succession, and to do other corporate acts, and each individual member of such corporation is also said to have a franchise of freedom. We think it well settled by these and other authorities, that a corporator in a private, civil corporation, has a property in the franchise, of which he can not be deprived without due process of law.

3. It was insisted by the learned counsel for the plaintiff in error, that the ninth by-law of this corporation is unauthorized by the charter, and that the corporation is not justifiable in expelling a member for its violation; that to deprive a corporator of his property in the franchise under it is to deprive him of his property without due process of law. We think the ninth by-law a proper one in view of the objects of the society, and we hold that the charter conferred upon the corporation the power to ordain and establish it, and that they have the power to expel a member when a proper case arises under it.

But we hold that the society has not an uncontrollable discretion in its construction and enforcement. They can not, under pretext of

enforcing this rule, take personal or private revenge, or make it the instrument of religious intolerance, or political proscription. 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.

4. The rule of law on this subject is thus stated by Judge Blackstone, volume 1, page 381. The king being thus constituted by law, visitor of all civil corporations, the law has also appointed the place where he shall exercise this jurisdiction, which is the court of king's bench, where, and where only, all misbehaviors of this kind of corporations are inquired into and redressed, and all their controversies decided. In this state the same visitorial power of correcting the misbehaviors of these corporations, and deciding their controversies, is vested in the superior courts of the counties where they are located, which in England belongs to the king's bench. See 5 John. Ch. R. 335.

It was contended, with much zeal and ability, by the able counsel for the defendant in error, that mandamus is not the proper remedy, even if we admit that the rights of Dr. Waring have been infringed, or that he has been deprived of them by the illegal action of the society. The rule, as laid down by this court in a number of cases is that a person having a clear legal right, under the laws of this state, is entitled to the writ of mandamus, if he has no other remedy to enforce it. 4 Ga. 26 and 116, 12 Ga. 170, 26 Ga. 665.

But it is insisted that the code, section 3143, has changed this rule, and that mandamus does not now lie as a private remedy between individuals to enforce private rights. We do not think this section of the code was intended to deny the writ to the corporator, who is deprived of his rights by the corporation, when he has no other adequate remedy for their enforcement. A corporation having been created, invested with certain powers, and charged with certain duties to be performed for the benefit of the public, is not a private individual in the sense of the word as used in said section of the code, and a corporator whose rights are withheld or violated by the corporation, who is without other remedy, is entitled to the writ.

In the Commonwealth, ex rel., etc., v. The Mayor of Lancaster, 5 Watts 152, Gibson, C. J., says: "An action to enforce the right could not be maintained against the corporation because performance of a corporate function is not a duty to be demanded by action, and unless recourse could be had to the functionary in the first instance, the relator might have a cause for redress without a remedy." See 4 Ga. 44.

Here the discharge of a corporate duty is treated as an office or function, and the corporation as a functionary. In this sense, no doubt, the legislature, in the adoption of the Code, intended to treat them.

The object of this society, as cited in their charter, was "for the purpose of lessening the fatality induced by climate and incidental causes, and improving the science of medicine." The whole community have an interest in the success of this laudable undertaking; and if the functions conferred by the charter, for the benefit of the public, are not faithfully performed, and one of the corporators, who has no other adequate redress, is injured by the conduct of the corporation (the functionary), the courts will grant him relief by manda

mus.

6. The record in this case shows no sufficient cause to justify the society in expelling Dr. Waring from his rights and privileges as a corporator. He was expelled for doing that which the law of this state not only authorizes but encourages. His offending consists in the fact that he became one of the sureties on the official bond of a colored citizen of his county, who had been elected clerk of the superior court of the county, by a majority of the legal votes cast at the election for that office, and in the further fact that he became surety on the bonds of certain other colored citizens who were charged with the offence of riot, for their appearance at court to answer the charge as the law directs. The very fact that the law requires the clerk of the superior court to give bond and security for the faithful discharge of his duties, is sufficient to justify any citizen of the county in becoming one of his sureties, and to protect him, in contemplation of law, from the imputation of having forfeited his position as a gentleman by so doing.

Again, it is not the object of law to punish citizens of this state, whether white or black, by imprisonment, for offenses of which they have never been convicted. When they are charged with violations of the penal code, the requirement of the law is, that they appear at the proper time and place, and answer the charge; and to secure such appearance, they are required to give bond and security, and it is only on failure to give the bond that they can be imprisoned. As innocent persons are often confined in prison under charges, because of their inability to give bond, the law favors bail whenever the offense is, by law, bailable. And the law favors this even in the case of the guilty, till the trial. This is not only best for the public, as it saves the tax-payers the expense of keeping them in jail, but is just to the accused, who receive the legal punishment for their crimes, if guilty, under the sentence of the court after legal conviction. How, then, does a citizen fòrfeit his corporate rights as a member of a civil corporation, or his position as a gentleman, by doing an act that is not only encouraged by the laws of his state, but is a positive public benefit? But it is said Dr. Waring was not expelled from becoming surety on the bonds above mentioned, but for ungentlemanly conduct in the presence of the society. What ungentlemanly conduct? The ninth by-law requires that "specific charges" be set forth and handed to the accused at least one month before the society takes action thereon. What specific charges of ungentlemanly conduct in presence of the society, were ever handed to Dr. Waring? What did he say or do in