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property interests, see Stark v. Hamilton, 14!) (ia. 227.

Ah to the right of jutlicial interference to i)revent suspension or (expulsion, com-
pare also, Weiss V. Musical Mutual Protective Union, 189 Pa. St. 440; Froolich y.
Musicians' Mutual Benefit Assn., 93 Mo. App. ',iH3.



SECT. IV] EXPULSION OF MEMBERS 713

to make an association, which, according to the allepjations of the
complaint, had been dissolved, a party to the suit. Yet this defunct
association is not only made a party, but appears as though living,
and files an answer in the lower court praying for judgment in favor
of the plaintiff — thus presenting the case of a deceased party com-
ing into court to participate in a contest as to the disposition of its
estate, and at the same time asking an adjudication of its own de-
cease. The error, however, though grotesque, is immaterial, and is
referred to simply for the purpose of clearing the case of an unneces-
sary complication. The suit is merely a suit against the defendants
Duchein and Knarston, who are to be regarded as the only defend-
ants.

The sole question in the case is as to the validity of the resolution
of the Grand Grove declaring a dissolution of the Garibaldi Grove
and a forfeiture of its property to itself. If that was valid the plain-
tiff was entitled to recover from Duchein the amount held by him
as treasurer at the time of the dissolution; otherwise not.

It is indeed claimed by Duchein that between the date of the
alleged dissolution and March 23, 1895, he paid out as treasurer,
and under the direction of the Garibaldi Grove (for lawyers' fees
and cost in previous suit — reported in Grand Grove, etc. v. Gari-
baldi Grove, etc., 105 Cal. 219), the sum of seven hundred and
eighty-one dollars, and on that date turned the balance over to his
successor; and it is submitted by his counsel "that Mr. Duchein
ought not to be compelled to pay these amounts twice." But if the
dissolution of the grove and the forfeiture of its property to the
Grand Grove be valid, such must be the result.

The principles of law governing the decision of the question in-
volved may be thus summarized: "There is no distinction in prin-
ciple between expelling a member from a subordinate grove and
revoking the charter of the grove itself." (Grand Grove, etc. v.
Garibaldi Grove, etc., supra.)

Associations of this character are not bodies politic or corpora-
tions ; nor are they recognized by the law as persons. They are mere
aggregates of individuals called for convenience, like partnerships,
by a common name. Such associations cannot, therefore, acquire or
hold property, though often said to do so. All the property said to
belong to it is in fact the property of its members and each man's
share of it is his own private property and equally protected by the
fundamental laws. (1 Bacon on Benefit Societies, sec. 27.) For the
same reason such associations cannot sue or be sued. In suits where
they are apparently parties, the real parties are the members of the
association, who — as in the case of partnerships — are sued by the
company name.

Associations of this kind are not vested with the right of expul-
sion by the general law of the land, but by the agreement of the
members as expressed in the charter, constitution, and by-laws of



714 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV

the association. To these and to legislation subsequently to be
enacted, every member assents in joining the association. (1 Bacon
on Benefit Societies, sees. 64, 81.) There thus arises a special law
resting on the agreement of the members and binding on them; and
in this, and not in the general law, is to be found the source of the
power of expulsion. Hence it is said: "The rights of the members
of these associations rest in contract, and . . . can only be divested
in the manner provided in the contract." (1 Bacon on Benefit Soci-
eties, sec. 104.)

It follows — unless in the case of conduct subversive of the funda-
mental objects of the association, with which in this case we have no
concern — that no member can be expelled, and thus deprived of
his share of the property of the association, unless for violation of
some explicit provision of the law of the association creating the
offense with which he is charged, and prescribing expulsion as the
penalty. (Otto v. Journeymen Tailors', etc., Union, 75 Cal. 314.)
To justify expulsion there must, therefore, be a written charge, in
the nature of an indictment or information referring, either expressly
or by implication, to the particular provision of the law violated and
describing some specific act or acts as constituting the offense. (Grand
Grove, etc. v. Garibaldi Grove, etc., supra; 1 Bacon on Benefit
Societies, sec. 103; Hirschl's Law of Fraternities, sec. 13, p. 13.)

The party accused must also have due notice of the trial of the
charge, and an opportunity of being heard in his defense (Grand
Grove, etc. v. Garibaldi Grove, etc., supra); and "if no other method
of notice is prescribed by the by-laws, it must be served personally"
(1 Bacon on Benefit Societies, sec. 101) — i. e., where the proceeding
is against the association — on the members, for they alone are the
parties to the suit. They may, however, where the constitution or
by-laws of the association so provide, be served vicariously by service
on certain officers or other agents designated by them for the pur-
pose. But service of this kind is good only by virtue of the agree-
ment of the members as thus expressed, and would otherwise be
void.

The above rules apply not only to the action of a subordinate
association in expelling a member, but, a fortiori, to a superior
association that assumes to exercise the power of expulsion over
the subordinate association or its members. (1 Bacon on Benefit
Societies, sees. 104, 116, subd. 4.) In either case, in a proceeding
for expulsion, the society exercising the power acts in a quasi judicial
character and must confine itself to the powers vested in it (Otto v.
Journeymen Tailors', etc.. Union, supra); and, as in all cases of in-
ferior tiihunals, its jurisdiction must affirmatively appear.

Api)lying these principles to the present case, it is manifest that
the proceedings against the Garibaldi Grove were without jurisdic-
tion, either of the subject matter, or of the parties, and were there-
fore wholly void.



SECT. IV] EXPULSION OF MEMBERS 715

1. The claim of jurisdiction over the person of the accused associa-
tion, or rather over the persons of its members, must rest on the
written acknowledgment of service of the citation, appearing in the
record, signed "C. Clivio, Last Noble Arch," " J. Moresi, Last Secre-
tary." The terms of these gentlemen had expired some (Mght months
prior to the date of the alleged service ; and even before the expiration
of their terms they had ceased to attend the meetings of the grove
and had avowedly withdrawn from exercising their official functions
— the signing of the acknowledgment being, in fact, their first official
act subsequent to their abdication of their offices. In the meanwhile,
other officers had been elected by those members of the grove who
continued to hold meetings; and these officers, at the time of the
alleged service, were claiming to be, and were acting as, the official
representatives of the grove. Their elections, it is indeed claimed,
were irregular and void. But it cannot be determined from the record
whether this was so, or the contrary; and on this point the burden
of proof was on the plaintiff. But however this may be, the fact is
indisputable that at the time of the proceeding, there was a de facto
association, consisting of members of the grove, claiming to be the
grove, and represented by its de facto officers. And under these cir-
cumstances it was not consistent with good faith for the Grand
Grove to serve Clivio and Moresi as representatives of the Garibaldi
Grove and its members, or for them to acknowledge service, and to
stipulate for immediate trial, on their behalf. For the effect of thus
proceeding was to deprive the members of the grove in opposition,
and claimed to be recalcitrant, of the opportunity to be heard, and
thus to deprive them of their shares of the property of the associa-
tion without due process of law. And such, manifestly, was the
purpose of the proceeding.

But apart from these considerations, and assuming that Clivio
and Moresi were the officers of the association, there was no evi-
dence of any provision of the charter, constitution, or by-laws of the
association prescribing vicarious service on them or authorizing
them to accept service. Hence jurisdiction could be acquired only
by personal service on the members (1 Bacon on Benefit Societies,
sec. 101); and there is no pretense of such service.

Much stress, however, is laid on the finding of the court that Mr.
Lovie "appeared before [the trial] committee on the part of said
defendants," and it is claimed that jurisdiction was thus acquired.
But the finding refers only to the defendants in this action, and
cannot be construed as referring to any other members of the asso-
ciation. And it also appears from the finding that the only authority
exercised or claimed by Mr. Lovie was the authority given him by
Duchein; whose authority does not appear. . . .

2. With reference to the jurisdiction of the Grand Grove over
the subject matter of the proceeding, the case is no better. The
charges against the Garibaldi Grove, as they appear in the written



716 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV

accusation, are of two kinds — the one consisting of the general
charge that the offending grove "had violated the terms of its char-
ter," and "had refused to obey the directions and laws of the Grand
Grove," etc.; the other, of charges of specific acts that do not appear
to be violations of any of the provisions of the charter, or of the
constitution or by-laws of the Grand Grove, or even to be acts of the
Garibaldi Grove, as distinguished from the acts of its members.
There was, therefore, no offense charged against the accused associa-
tion, or at least no offense justifying forfeiture. And the findings
of the trial committee are equally defective.

On both grounds, therefore, the case comes clearly under the con-
stitutional provision that no one "shall be deprived of . . . property
without due process of law." (Const., art. I, sec. 13; U. S. Const.,
art. XIV, sec. 1.)

I advise that the judgment and order denying a new trial be re-
versed and the cause remanded, with directions to the court below
to sustain the demurrer to the complaint.

Gray, C, and Haynes, C, concurred.

For the reasons given in the foregoing opinion the judgment and
order denying a new trial are reversed and the cause remanded,
with directions to the court below to sustain the demurrer to the
complaint.

Temple, J., Harrison, J., Garoutte, J.

Hearing in Bank denied.^

^ Meurer v. Detroit Musicians' Benevolent & Protective Assn., 95 Mich. 451.



PART III

CHAPTER XV

USE OF THE INJUNCTION AGAINST LABOR
ORGANIZATIONS '

Section 1 . Historical Development of the Injunction Remedy
in Labor Cases

Spence, Equitable Jurisdiction of the Court of Chancery.^
The Chancellor, therefore, at the very outset of Richard's ^ reign,
the king himself being of tender years, with the sanction no doubt
of the Council, exercised an authority, especially in favor of the
weak, for repressing disorderly obstructions to the course of the law,
and punishing the defaults of the officers who were entrusted with
its administration, and affording a civil remedy in cases of violence
and outrage, which, for whatever might be the reason, could not be
effectually redressed through the ordinary tribunals. . . . But
many powerful reasons operated to induce persons of all classes to
apply for the powerful aid of the Chancellor in cases which were not
strictly within the range of the principles above adverted to. . . .

On the establishment of the Star Chamber, though the Court of
Chancery continued to exercise jurisdiction simply to give reparation

1 As to the modern use of the injunction in labor cases, see R. C. McMurtrie,
Equity Jurisdiction Apphed to Crimes, 31 Am. Law Reg. (n. s.) 1 (1892); C. C.
Allen, Injunction and Organized Labor, 28 Am. Law Rev. 828 (1894); Wm.
Draper Lewis, A Protest against Administering Criminal Law bv Injunction,
Am. Law Reg. & Rev., vol. 33 (n. s.), p. 879 (1894); F. J. Stimson,"^The Modern
Use of Injunctions, 10 Pol. Sci. Quart. 189 (1895); Wm. H. Dunbar, Government
by Injunction, 13 L. Q. Rev. 347 (1897); Charles Noble Gregory, Government
by Injunction, 11 Harvard Law Rev. 487 (1898); Edwin S. Mack, The Revival
of Criminal Equity, 16 Harvard Law Rev. 389 (1903); Jackson H. Ralston,
Government by Injunction, 5 Cornell Law Quart. 424 (1920). See also, Wm. G.
Peterkin, Government by Injunction, 3 Va. Law Reg. 549; S. S. P. Patteson,
Government by Injunction, 3 Ibid. 625; James W. Bryan, Injunctions against
Strikes, 40 Am. Law Rev. 42, 196 (1906); F. C. Donnell, Injunctions against
Strikes, 65 Central Law Jour. 273; Percy L. Edwards, Government by Injunc-
tion, 57 Albany Law Jour. 8; Samuel Seabury, The Abuses of Injunction, 29
Arena, 561 ; C. H. Fauntleroy, Government by Injunction, 69 Central Law Jour.
129; Thos. F. Hargis, Government by Injunction, 4 Amer. Fed. 227.

See also, Report of U. S. Industrial Commission (1901), vol. 17, p. 611; High
on Injunctions (4th ed.), sees. 1415, a-m.

2 Vol. 1, pp. 343, 689.

3 I. e., Richard II. — Ed.



718 THE INJUNCTION [CHAP. XV

for outrage, where punishment was to be inflicted, the offending
party, as has already been observed, was generally handed over to
the Star Chamber, of which the Chancellor was a prominent mem-
ber.^

When, however, an improved state of society diminished the
frequency of crime, and the state of the country permitted that the
powers of the magistracy and of the ordinary tribunals should be
efficiently exerted for the repression of outrage and violence, and
an effectual supervision was exercised over the magistrates them-
selves; and when the jurisdiction of the ordinary courts to afford
Compensation for injuries, as well as to inflict punishment, was com-
pletely established, the necessity for the interference of the Court
of Chancery in such matters ceased, and the Court of Chancery re-
nounced its jurisdiction. In modern times the Court of Chancery
has refused to exercise any jurisdiction for the repression of crimes,
or even to afford its aid to the criminal jurisdiction of the courts
of common law.



SPRINGHEAD SPINNING CO. v. RILEY

Chancery. 1868

L. R. 6 Equity, 551

This was a demurrer to a bill filed bj^ the Springhead Spinning
Co., Limited, carrying on business as cotton spinners at Spring-
head Lees, near Oldham, in the county of Lancaster, where they
employed a large number of hands, against J. Riley and J. Butter-
worth, the president an3 secretary of an incorporated society, calling
itself the Operative Cotton Spinners, Self-acting Minders, and
Turners' Provincial Association, which was a voluntary association
of persons supported by moneys contributed by the members, and
against a printer named Carrodus. The book of rules of the asso-
ciation contained a preface urging on the members the necessity of
combination, and concluded with rules for the settlement, by the
committee of the association, of all disputes between workmen and

' The Court of Star Chanil^er exercised criminal jurisdiction over cases of
"oppression, and other exhorbitant offences of great men, (whom inferiour
judges and jurors (though they should not) would in respect of their greatnesse be
affraid to offend) bribery, extortion, maintenance, champerty, imbracery, forgery,
perjury, dispcrscrs of false and dangerous rumours, news, and scandalous libelling,
false and partiall misdemeanours of sherifs and bailifs of liberties, frauds, deceits,
great and horrible riots, routs, and unlawful! assemblies, single combats, chal-
lenges, duels, and other hainous and extraordinary offences and misdemeanours;
Ijut ordinary, and such offences as may be sufficiently and condignly jnuiished
};y the proceeding of the common laws, this court leaveth to the ortlinary courts
of justice and d(!aleth not with them, ne dignitas hvjus curiae vilesceret, as before
is said." Coke, Fourth Institute, p. 63.

The Court of Star (Jhaml)er, " having })ecome odious by the tyrannical exercise
of its powers," was abolished by the statute 16 Car. I, c. 10 (1640). — Ed.



*



SECT. I] HISTORICAL DEVELOPMENT 719

their employers, and for the payment of allowances to the men and
their families while on strike.

The bill contained the following statements: The managers of
the plaintiffs, owing to changes in the quantity of the cotton used
in the winding and spinnings of the plaintiffs, found it necessary,
about the month of February, 1868, to readjust the amounts of wages
then paid to the hands employed in their mill. Accordingly, on the
27th of February, a deputation of the hands, known as "minders,"
was invited to the offices of the plaintiffs, and the proposed altera-
tions stated to them, with a request that they would hold a meeting
of the hands, and consider the matter. On the 4th of March follow-
ing, the defendants Riley and Butterworth, together with two per-
sons representing themselves as two of the managing committee of
the association, called on the plaintiffs' managers, and stated they
came as representatives of the association. The plaintiffs' managers
furnished the last-named defendants and their companions with
the proposed list of prices. The defendants expressed themselves
content with the proposed readjustment of wages, and left the plain-
tiffs' premises at about the dinner hour of the hands.

Upon the return of the hands certain of the "minders," with the
concurrence, and, in fact, at the instigation of the defendants Riley
and Butterworth, and other members of the association not known
to the plaintiffs, gave notice of their intention to leave at the expira-
tion of a week, and on the Uth of March the hands, consisting of
minders and piecers, quitted the plaintiffs' employ.

There were, in fact, many persons competent and willing to take
the situations vacated by the hands who had so left the plaintiffs'
employ. But in order to prevent such persons from entering into
engagements with the plaintiffs for carrying on their business, and
to prevent the hands who had so quitted the plaintiffs' employ from
re-engaging themselves, the defendants Riley and Butterworth had
recently, with the assent and concurrence of the members for the
time being of the association, and out of moneys contributed by the
association for that purpose, published, and caused to be posted on
the walls and other public places in the neighbourhood of Spring-
head Lees and Oldham, divers placards in the following words:
"Wanted all well-wishers to the Operative Cotton Spinners, etc.,
Association not to trouble or cause any annoyance to the Spring-
head Spinning Co., Lees, by knocking at the door of their office until
the dispute between them and the self-actor minders is finally ter-
minated. .By special order." — "Carrodus, 32, Greaves Street,
Oldham."

The defendants Riley and Butterworth, with the hke assent and
out of the like moneys also, in order to prevent persons from enter-
ing into engagements with the plaintiffs for carrying on the business,
caused to be inserted in the Manchester Guardian and other newsr
papers, having a large circulation in Springhead Lees and Oldham,



720 THE INJUNCTION [CHAP. XV

and elsewhere, where the persons reside who would be willing to work
for the plaintiffs, an advertisement similar to the placard before set
forth.

(Par. 17). The said placards and advertisements were part of a
scheme of the defendants Rilej^ and Butterworth, and the said asso-
ciation, whereby they, by threats and intimidation, prevented per-
sons from hiring themselves to, or accepting work from, the plaintiffs,
and there were divers persons in, and in the neighbourhood of Spring-
head, and elsewhere, who, by reason of such notices and the liabilities
under which they would place them in regard to the association, were
intimidated and prevented from hiring themselves to the plaintiffs.

Letters of remonstrance were sent by the plaintiffs' solicitor to
the defendants Riley and Butterworth, and Carrodus and other
persons, against the continuance of the advertisements and placards,
and a public notice was issued to all persons in the neighbourhood,
warning them against the continuance of the printing and publish-
ing of these placards.

Notwithstanding such public notice and letters, the defendants
threatened and intended to publish other placards and advertise-
ments of a similar nature. The defendants Riley and Butterworth,
and the association, had, by means of such notices and advertise-
mnets, in fact, intimidated and prevented divers persons from hiring
themselves to, and accepting work or employment from, the plain-
tiffs, although such persons were willing to work for, and to hire
themselves to and accept work from the plaintiffs, and in particular,
the defendants had prevented P. Killeen and B. Chadderton from
so hiring themselves, and had, in fact, by the means aforesaid, forced
the said Killeen and Chadderton to depart from the hiring which
already subsisted between them and the plaintiffs.

The defendant Carrodus had, since he was communicated with
on behalf of the plaintiffs, reprinted and republished such placards
as aforesaid.

(Par. 30). The business carried on by the plaintiffs was one of
considerable magnitude, and the good- will thereof was worth many
thousand pounds. It was essential to the maintenance of such good-
will that the plaintiffs' business should be continued as a going con-
cern, and any stoppage of the plaintiffs' mill, in addition to the large
loss arising from the cessation of work, greatly depreciated the value
of the good-will of the plaintiffs' business, and was, in fact, an ir-
reparable damage to the corpus of their property.

(Par. 31). By the acts of the defendants the plaintiffs were in-
tended by the defendants to be, and were, in fact, prevented from
obtaining any persons willing to work at their mill or factory, and
thereby the plaintiffs were sustaining an actual damage or loss
amounting to 178/., or thereabouts, per week, and were in addition
prevented from carrying on the business as a continuous and going
concern, whereby the value of the corpus of the plaintiffs' property



SECT. I] HISTORICAL DEVELOPMENT 721

was seriously diminished, and was put in jeopardy of being lost
entirely.

The bill prayed that the defendants Kiley and Butterworth, as
well on their own behalf as on behalf of all other the members of
the association, their servants and agents, might be restrained from
printing or publishing any placards or advertisements similar to
those already set forth, or to the like effect, whereby the property
of the plaintiffs, or their business, might be damnified or injured,
or whereby any persons might be unlawfully hindered from working
in the plaintiffs' mill or factory, or from hiring themselves to, or
accepting work from, the plaintiffs, and that damages might be
awarded to the plaintiffs for the loss and damage already sustained,
or which might be sustained, by them in respect of the acts of the
defendants therein complained of, and that the defendants might
pay the costs of this suit.
The defendants demurred.

The Vice-Chancellor having granted an interim injunction, the
case now came on for argument upon the demurrers.

July 31. Sir R. Malins, V. C, after stating the facts, and re-
ferring to the Acts 6 Geo. 4, c. 129, the Masters and Workmen's
Act, and the Act of 1859 (20 & 21 Vict. c. 43), continued:

These Acts have received an authoritative construction in the
direction of Mr. Baron Bramwell to the jury in the case of Reg. v.
Druitt, 16 L. T. N. S. 855. The substance of that judgment, in which
I entirely concur, is this: That every man is at liberty to induce
others, in the words of the Act of Parliament, "by persuasion or
otherwise," to enter into a combination to keep up the price of wages,
or the like; but directly he enters into a combination which has as
its object intimidation or violence, or interfering with the perfect
freedom of action of another man, it then becomes an offence not
only at common law, but also an offence punishable by the express
enactment of the Act 6 Geo. 4, c. 129. It is clear, therefore, that



Online LibraryUnknownA selection of cases and other authorities on labor law → online text (page 89 of 124)