Vivar v. Supreme Lodge of Knights of Pythias

• Decision Date: 09 June 1890
• Citation: 20 A. 36,52 N.J.L. 455
• Parties: VIVAR v. SUPREME LODGE OF KNIGHTS OF PYTHIAS.
• Court: New Jersey Supreme Court

20 A. 36

52 N.J.L. 455

VIVAR

v. SUPREME LODGE OF KNIGHTS OF PYTHIAS.

Supreme Court of New Jersey.

June 9, 1890.

(Syllabus by the Court.)

On rule to show cause, from circuit court, Essex county; before Justice DEPUE.

Argued February term, 1890, before the Chief Justice, and SCUDDER, REED, and DIXON, JJ.

J. T. Dunn and J. H. Backes, for plaintiff. E. Q. Keasbey, for defendant.

DIXON, J. This suit was brought to recover the amount due on two certificates, in terms as follows: "Certificate of membership, first class, $1,000. No. 6,118. Endowment Rank of the Order of Knights of Pythias. This certifies that Brother Darius Vivar has received the Endowment Rank of the Order of Knights of Pythias in section No. 311, and is a member in good standing in said rank. And in consideration of the representations and declarations made in his application, bearing date of June 24, 1879, which application is made a part of this contract, and the payment of the prescribed admission fee, and in consideration of the payment hereafter to said Endowment Rank of all assessments as required, and the full compliance with all the laws governing this rank now in force, or that may hereafter be enacted, and shall be in good standing under said laws, the said sum of one thousand dollars will be paid by the Supreme Lodge, Knights of Pythias of the World, to Emily Louisa Vivar, his wife, as directed by said brother in his application, or to such other person or persons as he may subsequently direct by will or otherwise, and entered upon the records of the supreme master of exchequer, upon due notice and proof of death and good standing in the rank at time of death, and the surrender of this certificate: provided, however, that if, at the time of the death of the said Brother Darius Vivar, there shall be less than one thousand members in this class, there shall only be paid a sum equal to one dollar for each member in good standing in this class. And it is understood and agreed that any violation of the within mentioned conditions, or the requirements of the laws in force governing this rank, shall render this certificate, and all claims, null and void, and that the said supreme lodge shall not be liable for the above sum, or any part thereof. In witness whereof we have hereunto subscribed our names, and affixed the seal of the Supreme Lodge, Knights of Pythias of the World. D. B. WOODRUFF, Supreme Chancellor, [L. S.] JOSEPH DOWDALL. Supreme Keeper of Records & Seal. Issued this 5th day of July, 1879," etc. The other certificate is in the same form, but in the second class, for $ 2,000. Darius Vivar died April 24, 1882, and suit on these certificates was brought by Emily Louisa Vivar, in July, 1888, on the trial of which action the learned justice directed a verdict for the plaintiff, and gave the defendant a rule to show cause why the verdict should not be set aside, which rule is now to be decided.

Of the grounds on which the defendant seeks to support the rule, the first to be considered is that Darius Vivar was not in good standing in the rank at the time of his death. The Supreme Lodge of the K. of P. is a corporation created in 1871, pursuant to the laws of the District of Columbia. By its constitution, it is declared to be the source of all true and legitimate authority in the order of K. of P., wheresoever established. Under it, in the various states and territories of the Union, are organized grand lodges, one of which is known as the "Grand Lodge of K. of P. in the State of New Jersey." Subordinate to this grand lodge is, among others, the Olive Branch Lodge of Elizabeth port. Speaking generally, the supreme lodge consists of representatives from the various grand lodges, and each grand lodge is composed of certain past officers of its subordinate lodges. Membership in each subordinate lodge is derived from election therein. The Endowment Rank is a voluntary mutual life insurance association, open to members of the order only. It was established and is governed by the supreme lodge, and is divided into numerous local sections. Any member of a subordinate lodge desiring to enter the Endowment Rank joins such section of the rank as is most convenient. Article 4 of the constitution of the rank provides that, if a member of a section is suspended from his lodge for any cause, his membership in the rank ceases at the time of suspension from the lodge; but, should the action of the lodge be reversed by higher authority, the standing of the member would be the same as if no action was had, and he must pay all assessments made during such suspension. Upon this article the defendant contends that Vivar was not in good standing in the rank when he died, and upon this article also does the plaintiff rely for her answer to the contention.

Article 6, § 2, of the constitution of Olive Branch Lodge, provides that each applicant for membership shall sign an application stating his age, occupation, and residence; and article 9 provides that every member violating any of the obligations, established principles, laws, rules, or regulations of the order, disregarding the requirements of the constitution or by-laws, may be suspended from the lodge, in accordance with the laws, rules, and regulations. When Vivar joined the lodge, in June, 1879. he stated his age, in obedience to the second section of article 6, just mentioned. On September 7, 1881, written charges were preferred against him before the lodge, as follows: "Specification No. 1. Violations of the laws of this country. No. 2. For giving a false age upon entering the lodge. No. 3. For conduct unbecoming a Knight." Pursuant to other clauses of the constitution, these charges were referred to a committee of five Knights for trial. Vivar appeared, and was represented before them, and testimony was taken. On October 28, 1881, the committee reported to the lodge that there was no evidence to support the first or third specifications; that, as to the second, all the members of the committee believed that a false age had been given; and three members of the committee did not believe that a false age was given with any malicious intent, or intent to defraud. On November 9, 1881, the report and the testimony were read before the lodge, and the committee was discharged. Then motions that specification No. 2 be sustained, and that Vivar be suspended for 99 years, were carried by a vote of 19 to 6.

Whether these proceedings were in substantial accordance with the constitution of Olive Branch Lodge, which is ordained by the grand lodge, and not alterable by the subordinate lodge, may certainly be questioned. That constitution requires the committee to reduce their opinion as to the guilt or innocence of the accused to writing, and present it to the lodge. If the report in Vivar's case complied with that provision, it seems to be properly construed as a finding in favor of his innocence; for the purport of the opinion of the majority is that he had made an honest mistake as to his age, and certainly guilt cannot be predicated of such an error. The constitution directs that, at the next stated meeting of the lodge after presentation of the report, it shall be considered by the lodge, and a ballot betaken, when, a majority of the ballots cast being in favor of the report, it shall be recorded as the judgment of the lodge. There is no provision as to the procedure when a majority of the ballots cast are against the report. Under these circumstances, the vote of the lodge, on the question of sustaining the charge, should be deemed a vote to sustain only so far as the committee had reported in favor of it, and in that aspect it is difficult to see how it justified the infliction of any penalty. A penalty of practical expulsion from the order was certainly unreasonable. If, now, we turn to the by-laws of Olive Branch Lodge, which may supplement but cannot override its constitution, a similar conclusion will be reached. They provide that the trial committee "shall examine and determine the matter in question, and, if no appeal betaken from the decision of the committee to the lodge, it shall be final, as far as the guilt or innocence of the implicated brother is concerned, without other action from the lodge." In Vivar's case, no appeal was taken to the lodge, and consequently he should be regarded as exonerated from guilt, in accordance with the report of the majority of the committee. The vote to suspend him for 99 years—in effect to expel him, without adjudging him guilty of any offense—was unlawful, beyond the authority of the lodge, and therefore void. A member of an association in which he has pecuniary rights cannot be expelled, unless he is found guilty of an offense which either affects the interests or good government of the association, or is indictable by the law of the land. Com. v. Society, 2 Bin. 441. An attempted expulsion, without a conviction, had in accordance with the rules of the society or with the general principles of law, is nugatory, and the membership of the individual continues. Innes v. Wylie, 1 Car. & K. 257.

But, if it be conceded that the vote of the lodge did in fact suspend Vivar, the plaintiff in reply insists that the action of the lodge was "reversed by higher authority," and hence, according to article 4 of the constitution of the Endowment Rank before quoted, the standing of Vivar as a member was the same as if no action had been taken against him. By the constitution of the supreme lodge, grand lodges have (subject to a right of appeal to the supreme lodge) exclusive original jurisdiction over all subordinate lodges within their territorial limit, and over the members attached to the same; and all power and authority, not reserved to the supreme lodge, is delegated to the grand lodges. By the constitution of the Grand Lodge of the State of New Jersey, approved by the supreme lodge, it has jurisdiction over all lodges within this state, and possesses the right...