State ex rel. Alden v. Cook

• Decision Date: 13 March 1950
• Docket Number: No. 41690,41690
• Citation: 227 S.W.2d 729,360 Mo. 252
• Parties: , 25 L.R.R.M. (BNA) 2585, 17 Lab.Cas. P 65,650 STATE ex rel. ALDEN et al. v. COOK, Circuit Judge of Jackson County et al.
• Court: Missouri Supreme Court

Page 729

227 S.W.2d 729

360 Mo. 252, 25 L.R.R.M. (BNA) 2585,

17 Lab.Cas. P 65,650

STATE ex rel. ALDEN et al. v. COOK, Circuit Judge of Jackson County et al.

No. 41690.

Supreme Court of Missouri, en Banc.

March 13, 1950.

Paul Barnett, Kansas City, for relators.

Clif Langsdale, Kansas City, for respondent.

ELLISON, Presiding Judge.

This is an original proceeding in mandamus brought here by 85 members of Local Union No. 264 of The International Hod Carriers' Building and Common Laborers' Union of America, against Hon. John, f. Cook, one of the judges of the Jackson county circuit court, to compel him to set aside his order dismissing a class action brought in his court by the 85 relators, out of 1500 members of the Union, against the three defendant, the president [who is also business representative], the financial secretary and treasurer, and the recording and corresponding secretary.

The relators' petition below seeks an accounting of, and a joint and several judgment against the defendant for, Union funds allegedly withdrawn by the defendants wrongfully and conspiratorially, and for a preliminary and permanent injunction restraining the president and secretary of the Union from such unlawful practices. It alleges the three defendants, conspiring together, had permitted large sums of money to be paid out of the treasury of the Local Union for twelve enumerated unwarranted purposes, such as: political use; personal benefit; purchase of a private automobile; unauthorized expenses, etc. The action is brought on the theory that plaintiffs have no adequate remedy at law or within the Union and its parent body, The International Union, both of which are unincorporated. The defendants filed a motion to dismiss the action for want of jurisdiction in respondent's court on the ground that the plaintiffs had not exhausted their remedies within the two Unions. The respondent judge dismissed the action on the theory that he had no jurisdiction for that reason.

The record is voluminous, and the facts will be condensed as much as possible. Under the by-laws of the Local Union the defendant Irving, as president, and the defendant Livingston, as financial secretary-treasurer, are authorized to sign jointly checks drawn on the Union treasury. The defendant Butcher, as recording and corresponding secretary keeps the minutes of Union meetings, which should show what payments have been allowed or disallowed. The other officers are a vice-president, sergeant-at-arms, three auditors or trustees and an Executive Board. This board consists of the president, vice-president, recording-corresponding secretary, financial secretary-treasurer and three other members elected who are not officers.

The constitution of the Local Union provides that charges by one member against another or by members against officers * * *, shall be brought before the Executive Board of the Local Union, which shall constitute the Trial Board. If any charges are so brought, they must be filed with the recording secretary of the Local. Any member who has good cause therefor may bring charges against any other member or officers of this Local. The charges must be in writing, and clearly and specifically set forth the violation or wrong charged. They must be signed by a member in good standing and filed in duplicate. Following that are provisions as to notice, hearing of testimony, and rendering of decision. If either party is aggrieved by the finding of the Trial Board, he may in 30 days take an appeal to the Executive Board of The International Union.

When the Executive Board of the Local sits as a trial board, no member shall sit on a case in which he is directly interested or involved. In such case the President of the Local shall appoint a substitute or substitutes from the members in good standing. If the President is disqualified--as he was here along with the two secretaries--then the Vice President must appoint the necessary substitutes, which in this instance would be three.

The defendants in their motion to dismiss showed by an affidavit of defendant Livingston attached thereto, that Art. 13, Sec. 3 of the constitution of the Local Union forbids any member thereof to resort to any court of law or equity in any matter involving a question arising out of his membership in The International Union before he has exhausted all the remedies prescribed by the constitution and by-laws of the Local as well as those of the District and International Unions. Likewise, Art. 12, Sec. 3 of the constitution of The International Union similarly provides no local union shall resort to a court of law or equity in any matter arising out of its charter or membership in The International Union unless it first exhausts all the remedies within The International Union.

Art. 5, Sec. 2, vests all the executive and judicial power of The International Union in the General Executive Board when a Convention is not in session. The headquarters are in Washington, D. C. It further provides the judicial powers of that Board shall be both original and appellate, and that it shall have original jurisdiction of all charges and complaints by and against the officers and representatives of the International Union; those against a local union or other subordinate body; * * * and that it shall be vested with appellate jurisdiction over all charges and complaints against and between members, and against and between members and local unions.

Further Art. 5, Sec. 8 of the constitution of the Local Union provides the treasurer thereof shall have charge of its funds, and shall pay all bills by check countersigned by the president. He (the treasurer) shall give a detailed written report at a regular meeting at least once each month, showing the transactions and standing of the Union, and shall present his books for inspection. The Auditors or Trustees shall at the end of each quarter audit the books of the Financial Secretary and Treasurer and make a detailed report to the Local Union, which may call in a certified public accountant, and all officers, business representatives and others in charge of the books of the Local Union shall submit them to such accountant for that purpose.

Art. 6, Sec. 1 of the Constitution of The International Union provides the General President shall have power to visit local unions in person or by deputy; to require information from them and their officers and members, and to inspect or investigate their affairs, and for such purposes shall have the right to demand and obtain possession of all books, records and other papers belonging to the local union. It further provides that if through such investigation or otherwise he (the president or deputy) has or receives information which leads him to believe that an officer of a local union was dishonest, negligent or incompetent, he could appoint a member in good standing with The International Union to preside over all regular and special meetings of said local union and to supervise its affairs, during which time the local union should pay no bills of any kind without first obtaining written approval therefor from such supervisor.

Continuing, the section provides that if a local union, or officer thereof, refuses to comply with the order of the General President and obstructs an investigator or supervisor, he (the General President) may take over the office of the local union, suspend its officers, and prefer written charges against it or them, in the meantime appointing a member in good standing of The International Union as trustee to take full charge and control of the affairs of the local union and carry them on, the suspended officer being bound in the meantime to turn over to the trustees all monies. books, papers and other property of the local union. But the section then provides that any local union officer...