Post No. 581, Am. Legion, Dept. of Tex. v. Department of Tex., Am. Legion, 15702

• Decision Date: 20 April 1956
• Docket Number: No. 15702,15702
• Citation: 290 S.W.2d 712
• Parties: POST NO. 581, AMERICAN LEGION, DEPARTMENT OF TEXAS, Appellant, v. DEPARTMENT OF TEXAS, AMERICAN LEGION, Appellee.
• Court: Texas Court of Appeals

Page 712

290 S.W.2d 712

POST NO. 581, AMERICAN LEGION, DEPARTMENT OF TEXAS, Appellant, v. DEPARTMENT OF TEXAS, AMERICAN LEGION, Appellee.

No. 15702.

Court of Civil Appeals of Texas, Fort Worth.

April 20, 1956.

Rehearing Denied June 1, 1956.

John A. Rawlins, Dallas, for appellant.

Warren G. Moore, Tyler, for appellee.

BOYD, Justice.

This is an appeal by Post No. 581, American Legion, Department of Texas, from a judgment sustaining a plea in abatement filed by appellee Department of Texas, American Legion.

Appellant sued appellee, alleging that its band was the winner of a contest held in connection with the State Convention of appellee in July, 1954, and that, according to the rules promulgated by appellee, the winning band was entitled to receive from appellee's musical organizations fund the sum of $164 per man for its 40 band members, said amount to be applied on the expenses of the band members in attending the National Convention of the American Legion. Appellant alleged that it had received from appellee only $4,000 and judgment was asked for $2,560 and $500 attorney's fees. Appellant asked for and was granted an ex parte temporary restraining order restraining appellee from disposing of any money in its musical organizations fund, and prayed for a temporary injunction upon hearing.

Appellee filed a plea in abatement, alleging in substance as follows: (1) that appellant was without legal authority and capacity to sue in its name; (2) that appellant failed to include as party plaintiffs the names of the members of the band which it alleged was entitled to the money sued for, and that said individual members are indispensable parties; (3) that appellant failed to exhaust its remedies under the Constitution and By-Laws of the American Legion, Department of Texas, by appealing to its Convention; and (4) that appellant had not been chartered by the Department of Texas, American Legion, and had failed to allege whether it is an association, corporation or what other legal existence or status it maintains.

Upon a hearing, the court dissolved the temporary restraining order, denied the application for a temporary injunction, and sustained the plea in abatement.

It was shown that appellee holds in connection with its annual convention a contest of musical organizations under rules promulgated by its Department Executive Committee, acting under recommendations of its Musical Organizations Committee; that on February 27, 1954, the Musical Organizations Committee recommended that appellee be represented at the National Convention of the American Legion by the winners of the musical contests to be held at the State Convention in Fort Worth in July, 1954, and that the expenses of the winning groups in attending the National Convention be paid out of the musical organizations fund to the extent of the accumulated amount, to be prorated on the basis of 64 men, 40 men representing the winning band and 24 men representing the winning Drum and Bugle Corps. The winning groups were not required to compete in contests at the National Convention. The recommendations were adopted by the Department Executive Committee.

Prior to the 1954 State Convention, the Department Adjutant announced to the prospective contestants and to the membership in general that the musical organizations fund amounted to $10,500, which would be prorated among 64 men. A pamphlet was distributed by the Adjustant, containing the rules of the band contest.

The band representing appellant won the contest. At that time there was in full force and effect a By-Law of the Department of Texas, American Legion, providing that the finance and budget committee should buldget all funds except 15 cents per capita, which constituted the musical organizations fund. After appellant's band won the contest, the Convention then in session attempted to amend the By-Laws to provide that 'the funds raised by fifteen cents (15cents) per capita reserved herein shall be budgeted by the finance committee, subject to the approval of the Department Executive Committee.' Thereafter, the Executive Committee voted to send other units, making a total of 105 men, to the National Convention and to allot $100 per man for expenses instead of $164 per man for 64 men. Appellant's band received $4,000 from that fund for its expenses to the Convention. The expenses were more than $164 per man, and appellant paid all the expenses in excess of that amount.

In view of our disposition of the appeal, we do not determine whether the change in the By-Laws was effectual to bar the claim.

Appellee's Constitution and By-Laws provide that between conventions the administrative powers of the Department shall be vested in the Department Executive Committee. Appellant, between conventions,...