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» U.S. V. Debs, 64 Fed. 724 ; In re Debs, 158 U.S. 564, 15 Sup. Ct. 900.

* Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155 ; Cieland v. Ander-
son, 66 Nebr. 252, 92 N.W. 306 ; St. Paul Typothetse v. Bookbinders' Union,
tupra; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753.



TRADE AND LABOR ASSOCIATIONS 223

joined in suits at law, while in equity proceedings representative
members may be taken for a numerous class.

On the other hand are the cases already cited in which the
union was regarded as an entity, and as such held liable in
damages. In this view, damages may be assessed against an
organization in an action against it alone,^ or against a union as
a joint wrongdoer with a designated person or persons j^ and a
nonsuit was upheld by a federal judge in a case where the
plaintiff sought to recover damages for a violated contract of an
unincorporated society against four members who were sued
"individually and for themselves and for others, officers and
members of the unincorporated association." ^

The matter may be settled by legislation authorizing the
bringing of actions at law or suits in equity by or against unin-
corporated associations having some distinguishing name or
designation by such title ; * or by a law authorizing one of a
number of persons jointly concerned as plaintiffs or defendants
to appear for all.* A law of the former class,* granting the

* Purvis V. Brotherhood of Carpenters and Joiners, 214 Pa. St. 348, 63 Atl. 685.

* Wyeraan v. Deady, 79 Conn. 414, 65 Atl. 129 (Deady was the business
agent of the union) ; Branson v. Industrial Workers of the World, supra.

* Ehrlich v. Willenski, 138 Fed. 425, citing Ash v. Guie, 97 Pa. 493, 39 Am. Rep.
818 ; Pain v. Sample, 158 Pa. 428, 27 Atl. 1107. (This case evidently turned on a
classi6cation of the union as a beneBcial society, coming under a statute of the
state (B. P. Dig. p. 219, sec. 16) by which members of such societies were relieved
from personal liability for the obligations of the society, which might be proper
if a breach of contract only was under consideration, but which could hardly be
fairly applicable in many cases where union activities were under consideration.)

* Mich., C.L., sec. 10025; Conn., G.S., sec. 583; N. J., G. S., p. 2588; Vt.,
P.S., sec. 1448.

» Ind., A.S., sec. 270 (see Sourae r. Marshall, 23 Ind. 194) ; Ohio, Gen. Code,
Bee. 11257 (sec Kealey v. Faulkner, 18 Ohio S. & C. P. Dec. 498) ; Nev., C.L.. sec
3109 (see Branson v. Industrial Workers of the World, supra).

* Mich., C.L.. SCO. 10025.



224 LAW OF THE EMPLOYMENT OF LABOR

right of action against the organization without limiting the
common law right to proceed against the members as partners,
was held to be constitutional and applicable to a labor organiza-
tion.^ The action of the court in the case in which a nonsuit
was granted on account of the action being brought against
certain members of the union rather than against the union as
a whole 2 would restrict recovery of damages in a civil action
to the funds of the association, which corresponds to an action
against a corporation. As pointed out in the note, supra, this
view rests on a statute of the state of Pennsylvania.

As to the contracts of an unincorporated association, the in-
dividual members are liable at common law either because they
held themselves out as agents of a principal that had no existence,
or because they are themselves principals, since there is no other
in existence.' Part of the members cannot sue others on a
contract of an association ; * or for tort on account of the neg-
ligence of one employed by the association, since any such per-
son is as much the employee of the aggrieved party as of his
associates.^ In this ruling the law of principal and agent is
brought into view, which was formally held to apply in a case
involving contracts between two unincorporated associations.®
The agency must be clearly made out, when a contract is the
subject of action, since no individual member's liabiUty will be
presumed from the mere fact of association.^

» U.S. Heater Co. v. Iron Molders' Union, 129 Mich. 354, 88 N.W. 889.

» Ehrlich v. Willenski, supra. ' Lewis v. Tilton, 64 Iowa 220, 19 N.W. 911.

* McMahon v. Rauhr, 47 N.Y. 67.

» Martin v. N.P.B. Ass'n., 68 Minn. 521, 71 N.W. 701.

« St. Paul Typothetae v. St. Paul Bookbinders' Union, supra, citing Ehrman-
traut V. Robinson, 52 Minn. 335, 54 N.W. 188.

' Richmond v. Judy, 6 Mo. App. 465. See also Lawior v. Loewe, 187 Fed. 522
(C.C.A.).



TRADE AND LABOR ASSOCIATIONS 225

Being voluntary associations, their maintenance and preser-
vation or the continued membership therein of any individual
is not a subject that the courts can undertake to direct or se-
cure/ though members will be protected against improper
expulsion or other action depriving them of valuable status or
of property in union funds, tools, or other advantages.^

It is obvious that in many respects courts of equity are better
adapted to the determination of the rights of such bodies and
of persons in controversy with them, since their intangible na-
ture and the frequent inaccessibility or nonexistence of associa-
tion funds make proceedings against the persons of individuals
the only method of enforcing rights, which is a method of pro-
cedure for which courts of equity are especially adapted, the
judgments of law courts being generally enforced against a
designated fund or object by proceedings in rem; there is, how-
ever, a growing tendency to sink the distinctions between the
two forms of procedure. Under the English common law, an
unincorporated association could not come into court for any
redress whatsoever of collective grievances, since the granting
of charters of incorporation was a jealously guarded fimction of
the state, and no body of men could by associating themselves
together without such a charter arrogate to themselves any of
the functions of an entity independent of and apart from the
individuals composing it.' A treasurer might therefore em-
bezzle the association funds with impunity.* This has been
made the subject of statutory provision, however, so that there

•O'Brien r. Musical M. P. & B. Union, 64 N.J. Eq. 525, 54 Atl. 150.

« O'Brien v. Musical M. P. «t B. U.. supra; Weiss v. Same, 189 Pa. St. 446. 42
Atl. 118; Steinert r. United Brotherhood, 91 Minn. 189. 97 N.W. 668; Cotton
Jammers, etc., v. Taylor, 23 Tex. Civ. App. 367, 56 S.W. .'J53.

• Lloyd V. Loring, 6 Yes. 773. * Eric, Trade Unions, p. 4.

Q



226 LAW OF THE EMPLOYMENT OF LABOR

is now a right in the members representing an association to
proceed against a defaulting officer for the recovery of associa-
tion property.^ There is in the United States no question as
to the right of an association not formed for illegal purposes to
maintain an action for the recovery of its funds.^

Section 1 12. Rules, By-laws, etc. — The constitutions, rules,
by-laws, or by whatever name called, the agreements accepted
and entered into by the members of associations are contracts
between themselves, and in so far as they are legitimate, will,
on a proper showing, be enforced by the courts.^ While a de-
gree of restraint of trade is involved in every agreement not to
accept employment except under conditions conforming to a
rule fixed by an association, this fact alone does not invalidate
such rule, so far as internal administration is concerned, but the
extent, purpose, and methods of enforcement of such agreements
may bring them under the ban of the law. A man cannot enter
into a valid contract to the injury of a third party or the
prejudice of the pubUc,* and what an individual cannot lawfully
do alone he cannot do by union with others, so that an agree-
ment to surrender industrial freedom to an association is invalid
and may vitiate the entire basis of an association's agreements.^
Thus an association was not allowed to enforce a fine against a
member who had bid less for a piece of work than the rate fixed
by the association of which he was a member, though the fine



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Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 19 of 32)