Sabourin v. J. S. Lippe

195 Mass. 470 | Mass. | 1907

Knowlton, C. J.

This case comes before us on an appeal from a final decree in favor of the plaintiffs. The questions arise on exceptions of the defendants, other than the savings banks and savings institution, to the master’s report. These excepting defendants are hereinafter called the defendants. The first question is whether the master was wrong in finding that the vote of secession, so called, passed at the meeting of Court Samuel de Champlain, No. 49, November 19,1905, did not dissolve that court, or carry it as an association out of the Order of Foresters. For different reasons the vote was ineffectual to dissolve the court or deprive it of its legal rights. In the first place it is provided, in Article VI., section 7 of the constitution and by-laws of the grand court, that “ in no event can a subordinate court withdraw from this grand court, except as provided in Articles XXXI. and XLIL, General Laws.” There is a similar provision in the constitution and general laws of the order. The exception referred to has no relation to the present case. Such an attempt at withdrawal was in direct violation of the laws by which the order was governed. If it had been in the power of this court to amend its laws in such a way as to legally sever its connection with the Order of Foresters, it could not do it without previous notice to the members that such a proposal was to be acted upon. Article XXVI. of the subordinate court itself declares that “no part of these rules shall be annulled or amended unless the court has been previously given notice of it in writing and this proposed amendment shall be read at a regular meeting and if such proposed amendment is received it shall rest on the table through three subsequent regular meetings before being taken into consideration and shall not be adopted except by a vote of two-thirds of the members present at a regular meeting.” There was no attempt to observe this rule. There was no notice, in fact, to the members that such a subject was to be acted upon. The only notice of anything special to be considered at this meeting was a statement that there would be a discussion of the question, “ What action the court shall take on the subject of the resolutions adopted by the convention of the Foresters of America at Buffalo, prohibiting in the future the use of the French language in the new courts of the order.” This was far from a suggestion that the court would vote on secession from the order. Moreover, some of the members did not receive even this notice, which was given only by publication in two newspapers a short time before the meeting. The attempt at withdrawal did not dissolve the court. McFadden v. Murphy, 149 Mass. 341. Kane v. Shields, 167 Mass. 392. Karcher v. Knights of Honor, 137 Mass. 368, 372. Torrey v. Baker, 1 Allen, 121. Canadian Religious Association v. Parmenter, 180 Mass. 415, 422. Wiggin v. Free Will Baptist Church, 8 Met. 301, 312. Stebbins v. Merritt, 10 Cush. 27, 32. Saint Mary's Association v. Lynch, 64 N. H. 213. Schiller Commandery v. Jaennichen, 116 Mich. 129. Altman v. Benz, 27 N. J. Eq. 331.

The defendants contend that the court was dissolved by the action of the grand court in recognizing the plaintiffs as still constituting the court, and granting them a new dispensation. There is a grave question how far, if at all, this action was of legal effect for any purpose. But, if it is given effect, we are of opinion that it did not dissolve the subordinate court, but left it in continued existence. Under Article XXXIX. of the laws of the grand court fifteen or more members, voting in the minority against their court disbanding or seceding from the order, were to “ be recognized by the executive council of the grand court as the same court to which they formerly belonged, under a new dispensation, bearing the same number,” etc. Such recognition of the possible secession of a court as appears in this article is not to be taken as legalizing secession, but as admitting that the members may withdraw in fact and divide their money, in violation of the laws of the order. Under other provisions fifteen members are required to constitute a court, and this article provides, in substance, that if there are fifteen members who remain constantly loyal to the order, they shall be recognized as still constituting the court, and a formal dispensation to that effect shall be issued. The new dispensation granted by the grand court did not purport to dissolve the subordinate court, but it was issued to members of that court under the name and title of “ Court Samuel de Champlain, No. 49, being the same court to which they formerly belonged, and which has never been legally dissolved.” The vote on which the dispensation was founded, is that these members “ be and hereby are recognized as constituting the said Court Samuel de Champlain, No. 49, retaining the charter and all authority conveyed by it and all power and authority conveyed to said expelled members by any dispensation heretofore existing be and hereby are abrogated and cancelled.” The cancellation and abrogation .of power and authority were only of that which was personal to other “ persons to constitute and hold said court,” having reference to the expulsion, or attempted expulsion, of other members of the court. We are of opinion that the original subordinate court continued its existence after the issuing of the new dispensation.

The next question is whether there was error of the master in finding that this court is represented by the plaintiffs, as its officers. All those who were officers of the court on November 7, 1905, had withdrawn, and had abandoned their offices, and transferred their support to a similar new organization to which they had attempted to transfer all the valuable property of the court. We think the members who remained loyal might organize, and elect officers to take the place of those who had done all in their power to destroy the court as an existing organization, and had declared in the most emphatic terms their abandonment of their membership in it. A meeting was held at which these plaintiffs were elected officers, and about one hundred members who did not vote to secede have recognized the present officers by paying dues to the newly elected financial secretary.

The defendants have held meetings and maintained themselves as a separate, independent association known as L’Union Samuel de Champlain. So far as appears there has been no attempt by others than the plaintiffs, since their election, to act as officers of the court. Even without the recognition of the grand court, we are of opinion that the plaintiffs properly represent the court, as officers, in bringing this suit. Inasmuch as the grand court has general supervisory control of the subordinate courts, their recognition of this court with its present active members is a fact of some significance, even if the action of the council was not binding upon the expelled members. The defendants’ first exception to the supplemental report was rightly overruled.

It follows that the second, third and fourth exceptions, which relate to the transfer of the property of the court, were also rightly overruled.

In the view which we have taken of the law and facts, the defendants’ first, second, third, fifth and seventh exceptions to the refusal of the master to make certain findings requested by them are immaterial to any of the issues of the case as now presented. None of the rights of the plaintiffs in the present suit are made to depend on the action of'the council of the grand court, to which these requests relate. We leave undecided the question whether this action was valid either wholly or in part. There are many cases which hold that members of an association like this cannot be expelled without notice, and an opportunity of being heard. See note to Ryan v. Cudahy, 49 L. R. A. 353, 362, 363, et seq., with citations. The only notice of the meeting at which this action was taken was by a publication in two newspapers, one of which was four days, and the other two days, before the meeting. Some of the members had no notice or knowledge of the meeting until after it had been held. There are other facts bearing upon the effect of the action taken at this meeting which we need not now consider.

Decree affirmed.