Choate v. Logan

• Decision Date: 23 November 1921
• Citation: 133 N.E. 582,240 Mass. 131
• Parties: CHOATE v. LOGAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 131

133 N.E. 582

CHOATE

v.LOGAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 23, 1921.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit by Joseph B. Choate against Edward L. Logan and others. Reserved by a single justice on the bill and demurrer for determination by the full court. Demurrer sustained.

Plaintiff was commander of a post of the American Legion. Defendants, the members of the executive committee of the Department of Massachusetts, prepared and adopted a report censuring plaintiff, which plaintiff sought to have recalled and expunged.

Henry F. Hurlburt, of Boston, for plaintiff.

Sherman L. Whipple and Arthur M. Beale, both of Boston, for defendants.

PIERCE, J.

This is a bill in equity brought by a member of the Department of Massachusetts of the American Legion against certain officers of that department who constitute its executive committee, for an injunction ordering them to rescind and expunge from the records of the department an alleged vote of censure entered by them upon the records of the department and sent to the different posts within the department to be there read and become a part of the records of each of said posts, in addition to becoming a part of the records of the department of Massachusetts. The bill, in addition to the prayer that the so-called vote of censure be expunged and obliterated, further prayed:

That the vote of rescission ‘shall be subject to the approval of this court, and that it [the executive committee] be ordered to send to each of the several posts to which it sent a copy of said so-called vote of censure, a copy of such vote rescinding the same, and that said defendants be ordered by proper vote to recall said vote of censure so called, sent to said posts.’

There was a further prayer for general relief.

The defendants demurred to the bill and assigned seven reasons therefor. The case came on for hearing before a single justice of this court, and was reserved upon the bill and demurrer for the determination of the full court.

The first ground of demurrer is that--

‘Said bill of complaint fails to set forth or allege a cause of action which would entitle the plaintiff to relief in equity against any of the defendants.’

A short statement of the facts as they appear in the bill, and which are admitted by the demurrer, is that the plaintiff, while a commanderof one of the posts of the Department of Massachusetts of the American Legion, in pursuance of his right as a citizen of the commonwealth and within his rights as a member of the department under article 2, § 3, of the constitution of the Department of Massachusetts of the American Legion, which reads, ‘Each member shall perform his full duty as a citizen according to his own conscience and understanding,’ caused to be published in a Boston newspaper a criticism of the conduct of one of the defendants, then commander of said Department of Massachusetts. It further appears that this publication was officially brought to the attention of the executive committee of the Department of Massachusetts of the American Legion, in view of the fact that the plaintiff was at the time of the publication of the article commander of a post of the American Legion. The publication was under date of March 30, 1920. The executive committee, after consideration, invited the plaintiff to appear before it on April 26, 1920, either to substantiate or retract what was regarded by the executive committee as an unfair and unwarranted criticism of the department commander. In passing, it may well be observed that the published criticism is not in the record and its terms are not known to this court. The plaintiff did not appear in answer to the invitation of the executive committee, but instead, under date of April 23, 1920, wrote a letter to the executive committee declining to appear and maintaining his right to state whatsoever he pleased upon matters affecting the Legion.

On May 3, 1920, the executive committee prepared and adopted the report which the plaintiff seeks to have recalled and expunged, and on May 4, 1920, caused the same to be sent to all posts, there to be read at the next meetings of the posts. As a reading will show, this report sets forth in chronological order the action of the executive committee after the publication of the criticism of its commander, and after the fact of its publication had been officially called to its attention. It contained the statement:

‘In Mr. Choate's letter to the Herald, in addition to a discussion of certain questions connected with the Legion, he saw fit to make a personal and vicious attack upon the official conduct of the department commander.’

It contained also the declaration that--

‘The executive committee, although vested with the power to expel from membership, for sufficient reason, those whose conduct is such as to make their separation from the organization advisable for the best interests of the organization itself, upon due consideration and influenced largely by the request of the department commander refrains from expelling Mr. Choate for the serious offenses which he has committed,...