CONNECTICUT COURT OF COMMON PLEAS (Fairfield County). Frederick MEAD v. Hugh STIRLING. (62 Conn. 586.) 1. The remedies afforded by the Consti- of Masons of Connecticut, within the jurisdiction of which said local lodge is. That the plaintiff, at a communication of his lodge, truthfully and fairly stated to its members the substance of a certain important conversation relative to their order which he had theretofore held with the defendant, and received and submitted for their consideration, as he believed he was bound to do, certain resolutions, with preambles, which were thereupon offered. That on the day of the date of the complaint, between the hours of 11 and 12 o'clock in the forenoon, the plaintiff received a summons from the defendant, acting as grand master, to appear before him on the next day at 10 o'clock in the forenoon, to show cause why he should not be suspended from his said office "for having made the statement and receiving said resolutions, charging said statement to be a willful misrepresentation of said conversation." That 4. An allegation of irreparable injury the defendant proposes to himself determine to financial credit, without stating that the question of veracity between them, and plaintiff has any credit, or needs any credit, or is "to judge the plaintiff upon such finding, engaged in any occupation in connection with and suspend him from his said office; in which credit would be convenient, is insufficient other words, to act as judge in his own cause, 5. The fact that a person cannot be re- and further the carrying out" of an ulterior instated in his office in the masonic order point which he had in view. That, in makby reversal of a judgment of suspension until ing the statement complained of, the plain after the term of his office has expired is not tiff violated no masonic obligation or pledge ground for an injunction against the suspension, or any rule of gentlemanly and proper conthe office not being one of profit. duct or intercourse. That the defendant has 6. The fact that the grand master of a no authority by any masonic law, constitulodge, who is to try the question of mis- tion, or by-law of the grand lodge to try and representation as ground for the suspension depose the plaintiff from his said office of of a worshipful master of a local lodge, is also the honor and trust. That by masonic rules and complainant, is not sufficient ground for an in-law the plaintiff is entitled to a trial before 3. An allegation of irreparable injury, without stating the facts on which it is based, is not sufficient for an injunction. to obtain an injunction. junction from the courts to prevent the exercise of such quasi judicial authority. See also 41 L. R. A. 720. an unbiased tribunal of his peers, upon tes- For a collection of cases upon this subject see note to Canfield v. Knights of Maccabees (Mich.) 13 L. R. A. 625. " grand master can be made, or adequate relief | where members are expelled from religious to the plaintiff be granted. And the ap- societies, social clubs, benevolent societies, prehended damage is then stated as follows: and other voluntary organizations incorpoThat an order of suspension of the plaintiff rated or unincorporated, the judicial courts by the defendant would disgrace the plain- will not interfere to reinstate them, or to retiff in the opinion of all regular masons, vise the judgment of expulsion, until the work him an irreparable injury to his repu- expelled member has exhausted all the remtation, character, and business, and be pub- edies available to him within the organizalished in masonic circles, and otherwise most tion itself, by appealing to a higher judicaextensively circulated, injuring his financial tory provided by the rules of the society, or credit, and be an impeachment of veracity." otherwise." The same rule would of course An injunction is claimed restraining the de- apply with far greater force to a case of fendant from hearing and determining as to threatened suspension from a mere office in the guilt of the plaintiff, and from suspend- the order, and therefore authorities sustaining him from his said office. It will be ob- ing the proposition just quoted will control served that no specific allegation is made that the case at bar. In the case of Lafond v. a grand master has jurisdiction to suspend a Deems (1880), 81 N. Y. 507, it was sought worshipful master. On the contrary, the op- to dissolve a voluntary charitable association, posite would seem to be really claimed in and divide its assets, on the ground that the the complaint. But the case was argued by misconduct of its members and their mutual both parties upon the assumption that such bitterness of feeling and irreconcilable hosjurisdiction in fact existed, and as if it had tility made a winding-up of its affairs and been so alleged. The questions herein will division of its assets necessary. The rules therefore be considered as if it affirmatively of the order provided for the trial of its memappeared that the defendant had jurisdiction bers for misconduct, and in that connection over the subject-matter in dispute, or, in for appeals from one tribunal to another other words, that he had authority to sus- within the order. These remedies have not pend the plaintiff for a sufficient cause prop- been tried. The court denied the applicaerly proved. If the defendant had no juris- tion, and said: "As the members who are diction in the premises in any event, then, claimed by the plaintiffs to have been chargeof course, an injunction would be plainly able with a violation of the rules of the asunnecessary, and should not be granted. To sociation were not called upon to answer so this complaint the defendant demurs, virtu- as to correct the evils complained of, and as ally, on three grounds: (1) Because the the power to remedy the same was ample and plaintiff and defendant are bound to conform complete, the plaintiffs are not in a position to the constitution, laws, and regulations of to seek the interposition of a court of equity. the order to which they both belong; and the remedies thereby afforded, as indicated in the complaint, must first be exhausted before recourse can be had to this tribunal. (2) Because no property rights of the plaintiff are alleged to be threatened by the defendant, and, this being so, the first ground of demurrer is certainly valid, even if invalid otherwise. (3) Because no facts showing such irreparable damage as would warrant an injunction are set forth in the complaint. Although the circumstances in which the civil courts can be called upon to afford relief where property rights are not threatened must be rare indeed, still it seems to be well settled that, if any such in fact exist, the remedies within the order must first have been exhausted before other relief can be obtained. Accordingly, inasmuch as the plaintiff expects to be deprived merely of "an office of honor and position" in his order, with which no pecuniary emoluments or property benefits are alleged to be connected, the first ground of demurrer might well be disregarded, and the second considered in its place. But a few cases decided by tribunals in high repute hold that the same is true even where property rights are involved, and that, therefore, the first ground of demurrer is well taken also. If the first be sound, the second certainly must be, and therefore those cases will be briefly considered. Bacon, in his work on Benefit Societies & Life Insurance (sec. 104, top of page 127), says: "There is a great array of judicial authority in favor of the proposition that, Courts should not, as a general rule, interfere with the contentions and quarrels of voluntary associations so long as the gov ernment is fairly and honestly administered, and those who have grievances should be required, in the first instance, to resort to the remedies for redress provided by their rules and regulations. This had not been done in the case considered, and under such circumstances no action lies. None of the authorities cited by the plaintiff's counsel sustain the position that the remedy is at law or in equity, unless there is well-grounded cause for complaint; and even then an opportunity should be given to correct the cause of complaint within the organization where it can be properly done." I understand this to mean that, even if there is "well-grounded cause for complaint" on account of the methods adopted or the result reached by the first tribunal, still the means provided by the rules of the organization for the correction of such errors must first be pursued, before recourse can be had to the courts of the state. And if it be answered that the complaint shows that an appeal from the threatened action of the defendant to the grand lodge could not avail the plaintiff, because of the defendant's "bias and determined disposition" to be unfair to the end, still it surely must be an adequate and proper reply to say that the demurrer cannot be taken to admit that such a court of appeals is unable to and will not rectify any unfairness of the defendant at any stage of the case. Its disposition and ability to do so will be presumed, and, according to this authority must first be. " It ought to be added to what has already been said that respectable adjudications exist wherein it appears to be held that, even when property rights are involved, the ultimate decision of the tribunals of the order having jurisdiction not only must be sought, but, when obtained, is final and binding upon the party, even if "not in accordance with its by-laws, or for causes that had no foundation in fact." Schmidt v. Abraham Lincoln Lodge (1886), 84 Ky. 490; Hall v. Supreme Lodge K. of H. (1885), 24 Fed. Rep. 450. tested. In Poultney v. Bachman (1883), 31 of the rules of the society, is final and conHun, 49, the plaintiff sued the treasurer of clusive." This, of course, means that the a lodge of odd fellows to recover benefits, society remedies must be pursued to their and recovered judgment in the lower court. very end first, and that ultimate unfairness The general term, in reversing this judg. alone can be remedied by outside tribunals. ment, says (page 53): "Again, there is In a dissenting opinion in a similar case in another very important question, namely, the same court, Mr. Justice Green and an aswhether the plaintiff has any right to bring sociate say (agreeing in this particular with this action until he has exhausted all reme- the majority of the court) that "it is, of dies by appeal to the superior authorities of course, the duty of the members to exhaust the society. . It may well be said the remedies afforded by the constitution and that the contract, whatever it may be on the by-laws of his order or association before repart of the lodge, includes in itself a pro- sorting to the courts." Sperry's App. 116 vision for the decision by the appellate tri-Pa. 391. Actions brought by a shareholder bunals of the society of the matter in dis- against the officers of his corporation are in pute; and therefore it may be argued that important respects akin to the cases under not until these appellate tribunals have de- consideration, and in such actions it is held cided against the plaintiff can he say that that he "must show to the satisfaction of the he has been injured. Without dis- court that he has exhausted all the means cussing the question whether or not the de- within his reach to obtain within the corcision of the highest appellate tribunals of poration itself the redress of his grievances or the society is conclusive, we are of the opin action in conformity to his wishes. Hawes ion that the contract into which the plaintiff v. Oakland (1881), 104 U. S. 450, 26 L. ed. entered requires him first to seek redress 827. within the society itself by carrying the question to the highest tribunal, for it is evident that every part of the constitution and lawful by-laws enter into his contract, and are to be considered therewith." It should be noticed that the rules of the order in this case, as stated and referred to in the report, do not require dissatisfied members to appeal. They only provide for and permit appeals, which the case, in common with others, treats as equivalent to a requirement. In Oliver v. Hopkins (1887), 144 Mass. 175, the plaintiffs, as members of a subordinate The cases above cited, together with many council of the Order of United American others in them referred to, are usually quoted Mechanics, sued the defendants in equity, as as precedents for the doctrine that all remeofficers of the state council, to recover pos- dies within the order must be first exhausted, session of certain property formerly belong. even if property rights are involved. ing to the subordinate council, which had they are good law, the first ground of debeen appropriated by the state council after murrer is, of course, well taken. But ala decree, by annulling the charter of the sub- though of great, and possibly of controlling, ordinate council, which decree was claimed weight, they are not everywhere followed. to be illegal. An appeal from this decree of The doctrine, however, that, where property the state council was allowed by the rules rights are not threatened, the remedies withof the order to the national council, but no in the order must first be exhausted, seems appeal had been taken. The court says: to be universally accepted (as has been alUntil the plaintiffs have exhausted the rem- ready stated), which would make the second edies prescribed in the constitution and laws ground of demurrer unquestionably effective. of the national council, this bill in equity No decision to the contrary was referred to cannot be maintained. We are of by the plaintiff. A leading case in which opinion that the judgment of this court can- the doctrine of the cases herein before cited not be invoked by the plaintiffs until they is questioned, but the rule relied upon in have first sought the relief for which they the second ground of demurrer conceded, is pray from the tribunal provided by the as- Bauer v. Samson Lodge, K. of P. (1885), 102 sociation to try and determine questions of Ind. 262, in which the plaintiff sued for benthis nature. The case of Chamberlain v. efits. The defendant claimed that he should Lincoln (1880), 129 Mass. 70, is an action of have first proceeded through its committee the same general character as the above, re- on appeal and grievances, which had jurislates to property rights, and is similarly diction to grant him the relief asked for. decided. In McAlees v. Supreme Sitting Or- The court says: "The reasonable rule is that der of The Iron Hall (Pa. 1888), 13 Atl. Rep. such an organization may provide methods 755, a member of the defendant order sued for redressing grievances and deciding conit for benefits without first exhausting the troversies, and may compel members to resort remedies provided by the rules of the order to the prescribed method of procedure before in that connection. The court says: "We invoking the power of the courts, but that it have often held that a member of a benefi- may not entirely prohibit members from sucial society must resort for the correction of ing to recover benefits accruing to them unan alleged wrong to the tribunals of his order the by-laws of the organization. Men der, and that the judgment of such tribunals, voluntarily enter such organizations, and, in when resulting fairly from the application becoming members, subscribed to their laws; If and, if these laws make provision for trying it is impossible to believe that the grand lodge cannot accord to him a fair trial upon appeal if it wishes so to do, which wish is not denied, still certain broad and definite assertions are made in that connection, which to some extent, although I think not to all, must be taken to be admitted pro forma by the demurrer. Even then the defendant claims that a case of "great and irreparable mischief, where adequate relief cannot be had at law" (Whittlesey v. Hartford, P. & F. R. Co. 23 Conn. 433), is not made out. I am also of that opinion. The wrongful acts for the prevention of which injunctions will be granted are those which affect property, or its healthful or beneficial use, and never those which affect reputation merely. The only allegations of an apprehended injury to prop erty are that the threatened act will (1) "work him an irreparable injury to his business;" and (2) "be published in masonic circles, and otherwise most extensively circulated, injuring his financial credit." As to the first, it is enough to say that an allegation of “irreparable injury" is never sufficient. "It is well established that the mere allegation of irreparable injury will not suffice to warrant an injunction, but the facts must appear on which the allegation is predicated, in order that the court may be satisfied as to the nature of the injury." High, Inj. § 34; Carlisle v. Stevenson, 3 Md. Ch. 499; Waldron v. Marsh, 5 Cal. 119. As to the second, it should be remarked at the outset that the allegation is argumentative, and not direct, and "merely argumentative allegations or inferences from the facts stated will not suffice to meet the To briefly recapitulate, then, we have a requirements of the rule." High, Inj. § 34. case in which it is alleged that a superior It is nowhere alleged that the plaintiff has officer in the order of Masons, having juris- any credit, or needs any credit, or is engaged diction over the subject of the removal of in any occupation in connection with which inferior officers, proposes to remove such an credit would be even convenient. That he inferior officer in an irregular way, and after has in fact ample credit is doubtless true. a partial trial, from which order of removal It simply is not so alleged, and therefore an appeal lies, by the rules of the order, to does not legally so appear. Clearly, such a superior tribunal, and to prevent which allegations of apprehended injury are inprimary removal an injunction is sought. suflicient to bring the plaintiff within the Upon authority and upon reason it would familiar rule relative to injunctions, or to seem both necessary and eminently proper take him without the rule first above conthat the plaintiff should emerge into the do- sidered. If it be sought to infer the danger main of the state courts, if at all, from the of substantial or exceptional damage from confines of this order, and not per saltum the earlier allegations of the complaint, it from its midst. The diligence with which is not easy to see how the publication of the he searches in his complaint after the darkest exact facts could possibly injure the plainpossible colors in which to paint his impend- tiff, or why a garbled or untrue statement ing future would seem to indicate that in all of them-the probability of which is not alordinary cases he himself conceives such to leged-might not be adequately offset by a be the rule, but believes that the peculiar counter publication of the truth, while the hardships of his case justify an exception. knowledge that the decree of suspension had Right here the third ground of demurrer been appealed from should, and doubtless takes issue with him. The authorities which would, operate to suspend the judgment of lay down the rule above proved do not exempt those whose conclusions could ever be of cases of exceptional hardship from it. If weight or work an injury. The fact that a such an exception should be made, the de- judgment of reversal by the grand lodge, fendant claims that this is not such a case, owing to lapse of time, could not reinstate and, further, that, to justify the extraordi-him in his former office, affects his enjoynary remedy prayed for herein, a case of ment of that office only, which is not one of threatened irreparable injury must be al- profit. leged, whatever the rule in other cases may be. While it is difficult to understand how the plaintiff can possibly know what the grand master will eventually do, and while The defendant, in his argument, claimed that the position and character, from acting in which he was sought to be enjoined, was judicial, or at least quasi judicial, and that injunctions will not be granted to restrain, the pleadings and procedure, or in the conone so acting. This aspect of the matter is stitution of the body of triers. In this renot presented by the demurrer, but was con- spect a court of chancery has no more power sidered by the plaintiff, and merits notice. over the proceedings of a court of special and In Gregg v. Massachusetts Medical Soc. (1872), limited jurisdiction than over the proceed111 Mass. 185, 15 Am. Rep. 24, the plaintiff ings of courts of general jurisdiction. They sought to restrain the officers and "Board of might as well issue an injunction to restrain Trial" of the defendant society from trying and correct irregularities that are alleged to and expelling him from its membership, have occurred in the superior court whereby pecuniary injury would be inflicted as in this case." This case, with those hereupon him. The court, in the course of its in cited and others of a similar character opinion, says: "Injunctions issue against which may readily be found, would seem to parties, and not against courts. And the substantiate the defendant's claim. Whatjurisdiction in this respect has legal limits ever the remedy may be, it does not seem to which apply to proceedings in all courts and be by injunction against the trier. If it be tribunals. The general principle is that a said that in the case at bar the complainant court of chancery is not the proper tribunal and the trier appear to be one and the same to correct the errors and irregularities of in-person, it may be applied that such must ferior tribunals, and that in ordinary cases often be practically the case in contempt the court should not interfere. The proceedings in our state courts, where it plaintiffs have cited no authority, and we would hardly be claimed that irregularities have not been able to find any, which ex- of procedure could be restrained by injunctends to a case like the present, where the tion. inferior tribunal has jurisdiction of the subject-matter, and the object of the bill is to correct and restrain alleged irregularities in The demurrer is sustained and the foregoing reasons therefor, by request of the defendant, are ordered on file. NOTE.-Liability of a consolidated railroad com- | Cayley v. Cobourg P. & M. R. & Min. Co. 14 Grant, pany for the debts of its predecessor. A consolidated railroad company is liable on an implied assumption, for the debts and obligations and torts of the constituent companies. Louisville, N. A. & C. R. Co. v. Boney, 3 L. R. A. 435, 117 Ind. 501; Paine v. Lake Erie & L. R. Co. 31 Ind. 283; Indianapolis, C. & L. R. Co. v., Jones, 29 Ind. 465, 95 Am. Dec. 654; Columbus, C. & I. Cent. R. Co. v. Powell, 40 Ind. 37; Chicago, R. I. & P. R.Co. v. Moffitt, 75 Ill. 524; Coggin v. Central R. Co. 62 Ga. 685; State v. Baltimore & L. R. Co. 77 Md. 489. Other cases also hold that the consolidated company is liable for the obligations of the original companies, without giving the reasons for imposing such liability. Philadelphia v. Ridge Ave. Pass. R. Co. 143 Pa. 444; Root v. Oil Creek & Allegheny River R. Co. 31 Phila. Leg. Int. 140; Lake Shore & M. S. R. Co. v. Hutchins, 37 Ohio St. 282. Where there was a transfer by one to the other, and a creditor claimed a consolidation and liability, it was held that the first was dissolved, and that a court of equity would consider the assets as a trust fund, to be followed into the hands of a purchaser if he was not bona fide for a good consideration. Powell v. North Missouri R. Co. 42 Mo. 63. And under an act authorizing "a complete or partial union, and either of joint or separate or absolute, or limited liabilities to third parties," and the union made no provision limiting liabilities to third parties, the effect would be that the new company assumed all the liabilities of the old. Ch. 571. And in Cashman v. Brownlee, 128 Ind. 266, it was stated that the consolidated company assumes all the liabilities of the original companies; but this was not the question involved in that case. And a part of a statute of consolidation, repealing all the provisions of their charters not included in the act, which charters imposed a liability for care of streets, was held invalid as not embraced in the title of the act and the liability of the former attached to the new company. Ridge Ave. Pass. R. Co. v. Philadelphia, 124 Pa. 219, A railroad employing an attorney for services in relation to the construction of the connecting line, built with a view to consolidation or operation by the former, will be liable for the same. St. Louis & S. F. R. Co. v. Kirkpatrick (Kan.) Oct. 7, 1893. As to implied liability, see also Berry v. Kansas City, Ft. S. & M. R. Co. infra, and heading "Pleading and practice." Although a purchaser of a consolidated road under decretal sale takes the same free from the conditions, imposed by a county in granting aid to one of the companies, that trains should stop at a station, the new company, by common law and statute, is bound to stop sufficient trains to do the business required. People v. Louisville & N. R. Co. 120 Ill. 48. These cases fully sustain the doctrine of liability asserted in the main case. See also 27 L. R. A. 369; 30 L. R. A. 823; 35 L. R. A. 444; 44 L. R. A. 786. |