Kirby  v. American Legion

• Decision Date: 01 March 1927
• Citation: 155 N.E. 462,258 Mass. 434
• Parties: JAMES R. KIRBY POST NO. 50, AMERICAN LEGION, DEPARTMENT OF MASSACHUSETTS, Inc., v. AMERICAN LEGION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 434

155 N.E. 462

JAMES R. KIRBY POST NO. 50, AMERICAN LEGION, DEPARTMENT OF MASSACHUSETTS, Inc.,

v.AMERICAN LEGION et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1927.

Appeal from Superior Court, Suffolk County; Frederic Lawton, Judge.

Suit by James R. Kirby Post No. 50, American Legion, Department of Massachusetts, Inc., against the American Legion, in which Gilman L. Chase and another, individual members, intervened. From a decree for plaintiff, defendants appeal. Decree modified, and as modified affirmed.Charles T. Flynn, of Fitchburg (J. A. Donovan, of Lawrence, on the brief), for appellants.

R. G. Dodge, of Boston, for appellee.

BRALEY, J.

The American Legion, incorporated by an act of Congress approved September 18, 1920, is a national association of qualified veterans of the World War. Its organization consists of forty-eight departments, there being one department for each state. The departments, under the constitution of the Legion, are chartered by the national executive committee, and are composed of the posts within their respective areas. ‘Each department shall have a department commander, one or more department vice-commanders, a department adjutant, and a department executive committee. * * *’ The state department consists of one or more posts. The posts are voluntary associations whose members are, by affiliation, members of the state department. ‘Each department may prescribe the constitution of its post. Post charters may be revoked by the department executive committee with the approval of the national executive committee. Post charters may be suspended or cancelled as provided in the bylaws.’ And by section 3 of article III of the by-laws of the Legion, ‘American Legion posts suffering the revocation of their charters may appeal from the decision of the department commander and the department executive committee to the national executive committee as hereinafter provided.’

The application for a charter of certain residents of the commonwealth who desired to organize a post having been presented to the department commander as provided by article IX, § 1, of the constitution of the Legion, the necessary steps were taken, and a charter for a post to be known as ‘James R. Kirby Post No. 50’ was granted. The voluntary association thus constituted was thereafter recognized as a post of the department. Its members subsequently organized the plaintiff corporation, the incorporators being indentical with the members of the post, and it acquired and owned real and personal property prior to, and during the period covered by the litigation. The association, hereinafter referred to as the post, suspended ‘Past Department Commander James T. Duane,’ one of its members, and he appealed to the executive committee of the department.

It may be said as to parties that the original bill was brought by the post as a corporation, which never has been recognized by the Legion. But on the petition of three members of the post, they were allowed to intervene, and become parties plaintiff. The defendants, however, made no objection to the allowance of the petition, and did not demur to the amended bill. Cole v. Wells, 224 Mass. 504, 512, 113 N. E. 189. The case was referred to a master whose report, no exceptions being taken, was confirmed, and thereupon the plaintiffs were allowed to amend, to which amendment the defendants answered. The parties then agreed upon additional facts and the presiding judge on the report, the agreed facts and the pleadings entered a final decree for the plaintiffs from which the defendants appealed.

It appears from the master's report that the department executive committee ordered the post to reinstate Duane, and, the post having refused to obey the order, charges in accordance with the provisions of the constitution of the Legion against the commander and other elective officers of the post were presented to the committee. The specifications stating the grounds on which the charges were founded are, the refusal to abide by the order of reinstatment, and disobedience in failing to comply with the rule ordering promulgation of the committee's order. The post was served with notice, and a hearing was held by the committee May 5, 1924, the post being represented by counsel. It was voted to suspend the charter of the post to remain in effect until the ‘closing day of the department of Massachusetts convention to be held * * * August 21, 22 and 23, 1924,’ and ‘provided further, the post charter is hereby revoked with the adoption of this order, and that the department's action be placed before the national executive committee at its first meeting, following the receipt of this order for approval.’ The plaintiffs challenge the validity of the vote.

[1] The constitution of the department, article VI, § 1(b), in so far as material, provides, that the executive committee ‘shall have power to recommend to national headquarters by a two-thirds vote of members present at any meeting the revocation of the charter of any post for any violation of the Constitution, or for conduct unbecoming or prejudicial to the best interests of the American Legion.’ The master states, that eleven members of the committee were present, six of whom voted for the motion, three voted against it, and two did not vote. The wording of the department constitution is plain. It calls for affirmative action by two-thirds of the members present to be expressed by their votes. It cannot be presumed from the silence of the two members who refrained from any expression of their will that they would have voted in the affirmative. Maynard v. Board of Canvassers, 84 Mich. 228, 47 N. W. 756,11 L. R. A. 332;People v. Pease, 27 N. Y. 45, 57,84 Am. Dec. 242;State v. Green, 37 Ohio St. 227, 230; Labouchere v. Earl of Wharncliffe, 13 Ch. Div. 346. The vote of revocation was a nullity.

The post, however, seasonably exercised its right of appealto the national executive...