Sabourin v. Lippe

• Decision Date: 15 May 1907
• Citation: 195 Mass. 470,81 N.E. 282
• Parties: SABOURIN et al. v. LIPPE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 470

81 N.E. 282

SABOURIN et al. v. LIPPE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 15, 1907

COUNSEL

Joseph H. Guillet and William H. Bent, for appellants.

Albert S. Howard, for appellees.

OPINION

KNOWLTON C.J.

This case comes before us on an appeal from a final decree in favor of the plaintiffs. The questions arise on exceptions of the defendants, other than the savings banks and savings institution, to the master's report. These excepting defendants are hereinafter called the defendants. The first question is whether the master was wrong in finding that the vote of secession, so called, passed at the meeting of the Court Samuel de Champlain, No. 49, November 19, 1905, did not dissolve said court, or carry it as an association out of the Order of Foresters. For different reasons the vote was ineffectual to dissolve the court or deprive it of its legal rights. In the first place it is provided, in article 6 section 7, of the constitution and by-laws of the court, that 'in no event can a subordinate court withdraw from this grand court except as provided in articles 31 and 42 of the general laws.' There is a similar provision in the constitution and general laws of the order. The exception referred to has no relation to the present case. Such an attempt at withdrawal was in direct violation of the laws by which the order was governed. If it had been in the power of this court to amend its laws in such a way as to legally sever its connection with the Order of Foresters, it could not do it without previous notice to the members that such a proposal was to be acted upon. Article 26 declares that 'No part of these rules shall be annulled or amended unless the court has been previously given notice of it in writing, and this proposed amendment shall be read at a regular meeting, and if such proposed amendment is received it shall rest on the table through three subsequent regular meetings before being taken into consideration, and shall not be adopted except by a vote of two-thirds of the members present at a regular meeting.' There was no attempt to observe this rule. There was no notice, in fact, to the members that such a subject was to be acted upon. The only notice of anything special to be considered at this meeting was a statement that there would be discussion of the question, 'What action the court shall take on the subject of the resolutions adopted by the convention of the Foresters of America at Buffalo, prohibiting in the future the use of the French language in the new courts of the order.' This was far from a suggestion that the court would vote on secession from the order. Moreover, some of the members did not receive even this notice, which was given only by publication in two newspapers a short time before the meeting. The attempt at withdrawal did not dissolve the court. McFadden v. Murphy, 149 Mass. 341, 21 N.E. 868; Kane v. Shields, 167 Mass. 392, 45 N.E. 758; Karcher v. Knights of Honor, 137 Mass. 368-372; Torrey v. Baker, 1 Allen, 121; Canadian Religious Society v. Parmenter, 180 Mass. 415-422, 62 N.E. 740; Wiggin v. Free Will Baptist Church, 8 Metc. 301, 312; Stebbins v. Merritt, 10 Cush. 27-32; St. Mary's Association v. Lynch, 64 N.H. 213, 9 A. 98; Schiller Commandery v. Jaennichen, 116 Mich. 129, 74 N.W. 458; Altmann v. Benz, 27 N. J. Eq. 331.

The defendants contend that the court was dissolved by the action of the grand court in recognizing the plaintiffs as still constituting the court, and granting them a new dispensation. There is a grave question how far, if at all, this action was of legal effect for any purpose. But if it is given effect we are of opinion that it did not dissolve the subordinate court, but left it in continued existence. Under article 39 of the laws of the grand court, 15 or more members, voting in the minority, were to 'be recognized by the executive council of the grand court as the same court to which they formerly belonged, under a new dispensation bearing the same number,' etc. Such recognition of the possible secession of a court, as appears in this article, is not to be taken as legalizing secession, but as admitting that the members may withdraw in fact and divide their money, in violation of the laws of the order. Under other provisions fifteen members are required to constitute a court, and this article provides, in substance, that if there are 15 members who remain constantly loyal to the order, they shall be recognized as still constituting the court, and a formal dispensation to that effect shall be issued. The new dispensation granted by the grand court did not purport to dissolve the subordinate court, but it was issued...