Stevenson v. Holstein-Friesian Ass'n

• Decision Date: 04 February 1929
• Docket Number: No. 171.,171.
• Citation: 30 F.2d 625
• Parties: STEVENSON v. HOLSTEIN-FRIESIAN ASS'N OF AMERICA.
• Court: U.S. Court of Appeals — Second Circuit

30 F.2d 625 (1929)

STEVENSON v. HOLSTEIN-FRIESIAN ASS'N OF AMERICA.

No. 171.

Circuit Court of Appeals, Second Circuit.

February 4, 1929.

Greenleaf S. Van Gorder, of Buffalo, N. Y., for appellant.

Locke, Babcock, Hollister & Brown, of Buffalo, N. Y. (O. U. Kellogg, of Cortland, N. Y., and Louis L. Babcock, of Buffalo, N. Y., of counsel), for respondent.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

Concededly a District Court has no original jurisdiction to issue a writ of mandamus. Knapp v. Lake Shore & M. S. R. Co., 197 U. S. 536, 25 S. Ct. 538, 49 L. Ed. 870; Rosenbaum v. Bauer, 120 U. S. 450, 7 S. Ct. 633, 30 L. Ed. 743; Covington & C. Bridge Co. v. Hager, 203 U. S. 109, 27 S. Ct. 24, 51 L. Ed. 111. The theory upon which the bill was dismissed was that the relief demanded was in effect the issuance of such a writ, and that the substitution of a remedy by injunction for a remedy by mandamus is no more permissible in the federal courts than in the state courts. Such authorities as have been discovered tend to support this conclusion. See Smith v. Bourbon County, 127 U. S. 105, 8 S. Ct. 1043, 32 L. Ed. 73; Warner Valley Stock Co. v. Smith, 165 U. S. 28, 33, 17 S. Ct. 225, 41 L. Ed. 621; Fineran v. Bailey (C. C. A. 5) 2 F.(2d) 363; Whitaker & Ray Co. v. Roberts (C. C.) 155 F. 882, 887; Creager v. Bryan (D. C.) 287 F. 362; Herkness v. Irion (D. C.) 11 F.(2d) 386; People v. New York Benevolent Society, 3 Hun, 361; Bachman v. Harrington, 184 N. Y. 458, 77 N. E. 657; cf. Wilson v. Bowers (D. C.) 14 F.(2d) 976. But we do not find it necessary definitely to decide the point because, even if its truth be assumed, it would not justify the dismissal of the suit.

The relief prayed for included a claim for damages alleged to have been suffered, in more than the necessary jurisdictional amount, by reason of plaintiff's expulsion from membership in the defendant corporation. If the bill of complaint alleges a cause of action for a wrongful expulsion, we do not see why it should not be transferred to the law side, to be tried as an action for damages, even though there were no jurisdiction to give equitable relief. Judicial Code, § 274a (38 Stat. 956; 28 USCA § 397); Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 243, 43 S. Ct. 118, 67 L. Ed. 232. Hence we have examined the bill of complaint, and we rest our affirmance upon the ground that it states no cause of action.

The recitals of the bill are lengthy, but the facts essential to a decision may be stated quite briefly. The defendant association is a New York corporation, created by chapter 333 of the Laws of 1885, and reincorporated in 1914 pursuant to the Membership Corporation Law of the state (Laws 1909, c. 40 Consol. Laws, c. 35), section 8 of which specifies that the by-laws may make provision for the suspension and expulsion of members. The constitution and by-laws of the defendant contain provisions relating to expulsion; the provision of the by-laws being as follows:

"Any member of this association who violates the constitution, by-laws, rules of advanced registry, or other rules or regulations of the association, or who shall deceive or wrong the corporation or a member thereof, or other person, or who shall so conduct himself as to make his association undesirable * * * shall be censured, suspended, or expelled by the board of directors, or by the executive committee thereof, after notice and a hearing as hereinafter provided. * * *" The plaintiff, a citizen of Pennsylvania and the owner of a valuable herd of purebred hornless Holstein-Friesian cattle, became a member of the defendant association in 1912, and so remained until his expulsion by its executive committee in October, 1927. Notice was given to him about May 23, 1927, that charges had been preferred against him, and that a hearing thereon would be held by the executive committee at Springfield, Mass., on May 30th. A copy of the charges accompanied this notice. The plaintiff protested by letter that he needed at least 90 days to prepare for the hearing, and it was adjourned to October 20th at Memphis, Tenn. By affidavit dated October 17, 1927, he replied to the charges and protested against the place of the hearing, contending that it should be held either in Pennsylvania, or at the principal office of the defendant in Buffalo, N. Y. At the hearing, which he did not attend in person or by counsel, the committee took evidence, found that the charges were true, and that plaintiff "has so conducted himself as to make his membership in said association undesirable," and rendered its decision of expulsion. He was thereupon notified of this action and of his right to appeal to the board of directors at its meeting on December 5, 1927, in Chicago, Ill. He took such an appeal and submitted a written statement to the board, but he refused to appear in person or by attorney. The board reviewed the evidence and proceedings of the executive committee and affirmed its decision.

The charges upon which the decision of expulsion were predicated are too lengthy to set out in detail. The substance of them is that plaintiff, with other members, had in the years 1924 and 1925 instituted three successive suits against the association seeking substantially the same relief, namely, to have declared invalid the election of directors and other corporate action voted at meetings of the association and its directors held outside the state of New York; that all of said suits had been decided adversely to plaintiff's contentions by every court which had passed upon them, two of the suits having been carried to the Appellate Division (219 App. Div. 769, 219 N. Y. S. 913, 922); that some of the litigation had been instituted after the Court of Appeals had settled the same issues in a suit against defendant brought by other members, known as Matter of George v. Holstein-Friesian Ass'n, 238 N....