99 v. I.O.O.F.

• Decision Date: 06 October 1894
• Citation: 54 Kan. 73,37 P. 1003
• Parties: RENO LODGE NO. 99, I. O. O. F., OF HUTCHINSON, et al., v. THE GRAND LODGE OF THE I. O. O. F. OF THE STATE OF KANSAS et al
• Court: Kansas Supreme Court

37 P. 1003

54 Kan. 73

RENO LODGE NO. 99, I. O. O. F., OF HUTCHINSON, et al., v. THE GRAND LODGE OF THE I. O. O. F. OF THE STATE OF KANSAS et al

Supreme Court of Kansas

October 6, 1894

Error from Shawnee District Court.

THIS action was instituted in the district court of Shawnee county, in the name of Reno lodge No. 99, I. O. O. F., of Hutchinson, and 91 other lodges of Odd Fellows, against the grand lodge of the Independent Order of Odd Fellows of the state of Kansas, J. A. Campbell, grand master, John A Bright, grand secretary, and Louis C. Stine, grand treasurer. The petition says that the grand lodge was chartered on the 10th day of March, 1858, by an act of the legislature of the territory of Kansas, and is now a duly organized and existing corporation. It is averred

"That the said defendant grand lodge of Kansas derived its sole power and authority from the sovereign grand lodge I. O. O F. of the United States, and the constitution, laws and resolutions of the corporation; that the said defendant corporation has the supreme legislative, executive and judicial authority within the state of Kansas, under the constitution, laws and resolutions of said sovereign grand lodge."

The other defendants named are the general officers of the grand lodge of the state. It is further alleged:

"That the plaintiffs hereinbefore mentioned, and each of them, are duly authorized, chartered and instituted subordinate lodges of the Independent Order of Odd Fellows of the state of Kansas, working under the jurisdiction of the defendant the grand lodge I. O. O. F. of Kansas, and that each of them are duly incorporated and existing as such corporations under the laws of Kansas; that as such subordinate lodges these plaintiffs are subject to the laws, regulations, rules and resolutions of the grand lodge of Kansas, and to the supervision and direction of the grand master of said defendant grand lodge."

It appears from the pleadings and evidence that on the 11th day of May, 1892, E. V. de Boissiere conveyed to Louis C. Stine George A. Huron, Milo B. Ward, George W. Jones, and Charles L. Robbins, and their successors, 3,156 acres of land in Franklin county, and a large amount of personal property, in trust, to provide a home on the lands conveyed for the orphaned children of deceased Odd Fellows of the state of Kansas. This conveyance was made with the understanding that the Odd Fellows should assume and pay an indebtedness of about $ 17,500. At the session of the grand lodge held in Fort Scott, in the fall of 1892, the grand lodge accepted the gift, and undertook to raise money to pay off the indebtedness and make needed improvements. For this purpose they called on the various lodges in the state for voluntary contributions. In response to this call about $ 12,500 was received. Some lodges, however, failed to respond, and from others individual contributions only were forwarded. At the session of the grand lodge held in Topeka, in October, 1893 a per capita tax of $ 1 on the membership of the subordinate lodges in the state was levied to pay off the indebtedness on this property, and a further per capita tax of 50 cents was levied to maintain and equip the orphans' home. The lodges which had made voluntary contributions were to receive credit on their assessments for the amounts already paid.

The petition alleges that this assessment was made without lawful authority by the grand lodge of the state; that the grand lodge has no control over the property conveyed by de Boissiere; that the assessment discriminates against the plaintiffs and other subordinate lodges; that it is without authority and against the laws of the sovereign grand lodge and not in accordance with the objects and purposes of the order; that the funds sought to be raised by this tax are proposed to be paid over to an independent corporation which has been organized for the purpose of managing the property, not under the jurisdiction or control of the grand lodge of Kansas; that the defendant Campbell, as grand master, threatens to collect said tax by every means in his power, by refusing to communicate through the deputy grand masters the semiannual or annual passwords, and by refusing to allow installation of elective officers, and by threats of suspension if payment is not made. The petition concludes with a prayer for an injunction restraining the defendants from collecting the tax, and asks that the grand master be compelled to transmit the passwords and install officers. The answer is long, and alleges many things with reference to the right of the respective lodges to appear as plaintiffs in the suit, and sets forth certain proceedings of the state and sovereign grand lodges, which it is not necessary to recite at length. Afterwards, on motion of the plaintiffs, the case was dismissed as to a considerable number of the plaintiff lodges, and went to trial between the remaining parties. The court refused to grant the plaintiffs any relief, and entered judgment in favor of the defendants for costs. The plaintiffs bring the case to this court.

Judgment affirmed.

George W. Wright, R. A. Campbell, J. Jay Buck, and D. W. Kent, for plaintiffs in error:

The plaintiffs have each an interest, identical, in resisting the payment of a tax of $ 1.50 per capita on their membership. Gilmore v. Norton, 10 Kan. 502; March v. Eastern Rld. Co., 40 N.H. 548, 77 Am. Dec. 737; Hudson v. Comm'rs of Atchison Co., 12 Kan. 147; Center Twp. v. Hunt, 16 id. 440; Palmer v. Waddell, 22 id. 358.

The petition for membership provides:

"And that I will seek my remedy for all rights on account of said membership or connection therewith in the tribunals of the order only, without resorting for their enforcement in any event for any purpose to the civil courts."

If this is construed to prevent a resort to the courts in such an action as this, such a contract would be without consideration, and void as against public policy.

Maxwell v. Reed, 7 Wis. 582; Bauer v. Samson Lodge, 102 Ind. 262; Shapley v. Abbott, 42 N.Y. 451, 1 Am. Rep. 548; Maloney v. Newton, 85 Ind. 566, 44 Am. Rep. 46; Phelps v. Phelps, 72 Ill. 549, 22 Am. Rep. 149; Denny v. White, 2 Coldw. 283, 88 Am. Dec. 596; Moxley v. Ragan, 10 Bush, 156, 19 Am. Rep. 61; Levicks v. Walker, 15 La. Ann. 245, 77 Am. Dec. 187; Carter v. Carter, 20 Fla. 558, 51 Am. Rep. 618; Recht v. Kelly, 82 Ill. 147, 25 Am. Rep. 301; Shelly's Appeal, 36 Pa. 380; Curtis v. O'Brien, 20 Iowa 376, 89 Am. Dec. 543; Pearl v. Harris, 121 Mass. 390; Kneettle v. Newcomb, 22 N.Y. 249, 78 Am. Dec. 186; Eltzroth v. Webster, 15 Ind. 21, 77 Am. Dec. 78; Gray v. Wilson, 4 Watts, 39; Hart v. Lauman, 29 Barb. 410; Haggart v. Morgan, 5 N.Y. 422, 55 Am. Dec. 350; Muldrow v. Norris, 2 Cal. 74, 56 Am. Dec. 313; Fahs v. Darling, 82 Ill. 142; Wood v. Humphrey, 114 Mass. 185; Vass v. Wales, 129 id. 38; White v. Middlesex Rld. Co., 135 id. 216; Hill v. More, 40 Me. 515; Hurst v. Litchfield, 39 N.Y. 377; McGunn v. Hanlin, 29 Mich. 476; March v. Eastern Rld. Co., 40 N.H. 548, 77 Am. Dec. 732; Smith v. B. C. & M. Rld. Co., 36 N.H. 487; Home Ins. Co. v. Morse, 87 U.S. (20 Wall.) 545, 22 L. ed. 365; Hobbs v. Manhattan Ins. Co., 56 Me. 417, 96 Am. Dec. 472; B. & O. Rld. Co. v. Cary, 28 Ohio St. 208; King v. Howard, 27 Mo. 21; St. Louis v. Gas Light Co., 70 Mo. 69; Greason v. Keteltas, 17 N.Y. 491; Chamberlain v. Conn. Cent. Rld. Co., 54 Conn. 472; Dugan v. Thomas, 79 Me. 221.

The courts draw a distinction between incorporated and unincorporated societies, holding that incorporated societies may resort to the civil courts, but that unincorporated societies may not always have such recourse. This holding is not, however, universal. Hiss v. Bartlett, 3 Gray, 468, 63 Am. Dec. 776, notes; Bauer v. Samson Lodge, 102 Ind. 262; Supreme Council v. Garrigus, 104 Ind. 133, 54 Am. Rep. 298.

Every citizen is entitled to resort to all the courts of the country, and to invoke the protection which all the laws or all the courts may afford him. A man may not barter away his life or his freedom or his substantial rights. Agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void. Home Ins. Co. v. Morse, supra; Nute v. Hamilton Mut. Ins. Co., 6 Gray, 174; Hobbs v. Manhattan Ins. Co., 56 Me. 421, 96 Am. Rep. 472; Stephenson v. F. & M. Ins. Co., 54 Me. 70; Mentz v. Armenia F. Ins. Co., 79 Pa. 478, 21 Am. Rep. 80; Scott v. Avery, 5 H. L. Cas. 811.

The courts will interfere for the purpose of protecting property rights of members of unincorporated associations, and, when they do interfere, it may be stated with safety that the rules which the courts will follow are essentially the same as those which guide the courts when dealing with formally incorporated bodies of the same kind. Hirschl, Frat. & Soc., § 4711.

The benefits of the order are not a charity. They become a matter of insurance, and one party (the grand lodge) may not arbitrarily destroy the contractual relations to avoid the terms of the contract. Otto v. Protective Union, 74 Cal. 308; Chase v. Cheney, 58 Ill. 509, 11 Am. Rep. 95; Hirschl, Frat. & Soc., p. 47; Beaumont v. Meredith, 3 Ves. & B. 180; Penfield v. Skinner, 11 Vt. 296.

Bertram & Nicholson, and J. G. Wood, for defendants in error:

The order of Odd Fellows has provided tribunals within itself in which all the disputes and controversies may be adjusted and settled by appropriate steps and remedies, and the controversy here is one that should be first settled by the tribunals of the order.

This controversy is one that falls within the rule of matters pertaining to the affairs of the order, and the law is that the parties aggrieved must first exhaust all the remedies provided by the order for the redress of grievances.

Niblack Mut. Ben. Soc.,...