Screwmen's Ben. Ass'n v. Benson

• Decision Date: 14 March 1890
• Citation: 13 S.W. 379
• Parties: SCREWMEN'S BEN. ASS'N <I>v.</I> BENSON.
• Court: Texas Supreme Court

13 S.W. 379

SCREWMEN'S BEN. ASS'N

v. BENSON.

Supreme Court of Texas.

March 14, 1890.

Appeal from district court, Galveston county.

Hume & Kleberg, for appellant. L. E. Trezevant, for appellee.

GAINES, J.

Appellee brought this suit against appellant, alleging that it is a corporation organized under the laws of the state for charitable purposes, and that he was a member of the body, and had been unlawfully expelled. He prayed that he have a writ of mandamus restoring him to membership, and for a judgment for damages alleged to have resulted from his exclusion. The petition avers that by the laws of the corporation the power of trying and expelling members is lodged with a committee of five corporators, known as the "board of trustees," and that he was expelled by the action of that board. The grounds upon which the sentence was alleged to be illegal were that no evidence was introduced upon the trial; that the offense with which plaintiff was charged was one for which that penalty could not be enforced; and that the report of the board which contained the order of expulsion was the act of but three of the five members, and that one of the three was not present at the trial. The petition also contains the following additional averments: "That article 10 of the constitution of the association provides that the board of trustees of said association shall have power to try and adjudicate all charges against any member when the charges involve suspension or expulsion, and their decision shall invariably be final, without any further action on part of the association, unless an appeal be taken, which appeal must be made by the member or person against whom the charges are pending. In cases of appeal a two-thirds vote of all the members present shall be necessary to overrule the decision of the board, and all members present shall be required to vote on this question." There was an exception to the petition, based, specifically, upon the grounds that the petition did not show that plaintiff had ever appealed from the finding of the board of trustees, or that he had in any manner been deprived of that privilege. The exception was overruled, and the ruling is assigned as error.

In Manning v. San Antonio Club, 63 Tex. 166, the writ of mandamus is recognized as the appropriate remedy by which to restore a member of an incorporated society to his rights and privileges in the association. Cases may be found which do not accord with this doctrine, but we think it is supported by the great weight of authority. Society v. Weatherly, 75 Ala. 248; Otto v. Union, 75 Cal. 308, 17 Pac. Rep. 217; Exchange v. Warfield, 54 Ga. 668; Society v. Com., 52 Pa. St. 125; State v. Lipa, 28 Ohio St. 665; Com. v. Society, 2 Bin. 441; Sibley v. Carteret Club, 40 N. J. Law, 295; Green v. Society, 1 Serg. & R. 254; Roehler v. Society, 22 Mich. 86. But the writ of mandamus is a remedy of the last resort. It is universally held that if a party have an adequate common-law or statutory remedy he cannot resort to this writ, and the rule has been repeatedly announced in this court. Commissioners v. Bell, Dall. Dig. 366; Cullem v. Latimer, 4 Tex. 329; Arberry v. Beavers, 6 Tex. 457; Ewing v. Cohen, 63 Tex. 482. A member of a voluntary association is bound by a sentence of expulsion against him lawfully rendered by a tribunal created in pursuance of its constitution, and clothed with that power. The rule also applies at least to such...