Weiss v. Musical Mut. Protective Union

• Decision Date: 03 January 1899
• Docket Number: 183
• Citation: 189 Pa. 446,42 A. 118
• Parties: Andrew G. Weiss and Charles A. Young v. The Musical Mutual Protective Union and J. M. Allen, Thomas J. Welsh, Charles Gernert, Gustav Espy, Chas. W. Gaston, James Holley, Joseph Pannella, J. V. Yost, John M. Muller, John Hoffman, John S. Brecht, Wm. P. Schwartz and Jacob Sauerwein, constituting the Board of Directors
• Court: Pennsylvania Supreme Court

42 A. 118

189 Pa. 446

Andrew G. Weiss and Charles A. Young v. The Musical Mutual Protective Union and J. M. Allen, Thomas J. Welsh, Charles Gernert, Gustav Espy, Chas. W. Gaston, James Holley, Joseph Pannella, J. V. Yost, John M. Muller, John Hoffman, John S. Brecht, Wm. P. Schwartz and Jacob Sauerwein, constituting the Board of Directors

No. 183

Supreme Court of Pennsylvania

January 3, 1899

Argued November 9, 1898 [Copyrighted Material Omitted]

Appeal, No. 183, Oct. T., 1898, by defendants, from order of C.P. No. 3, Allegheny Co., May T., 1898, No. 382, issuing writ of peremptory mandamus. Affirmed.

Petition for mandamus.

The case was tried by the court without a jury. KENNEDY, P.J filed the following opinion:

This is an application to compel by writ of mandamus the restoration of plaintiffs to membership in the Musical Mutual Protective Union, defendant, which is a corporation under the laws of Pennsylvania, organized for the "promotion of music and to unite the instrumental portion of the musical profession for the better protection of its interests in general," of which corporation the plaintiffs were members in good standing up to the time of their expulsion complained of in these proceedings. At the time of the expulsion of plaintiffs the membership of the organization was over four hundred, and it had a surplus fund of over $5,000.

It seems to be well settled that courts have power to supervise the acts of corporations, the principle being thus stated in Burt v. Grand Lodge, 66 Mich. 85: "The only ground on which this court can interfere with organized bodies by mandamus in aid of a member is that, as corporations, they are subject to our judicial oversight, to prevent their depriving members of corporate privileges." This principle certainly obtains where, as in this case, property rights are involved. Let us see whether such a case is presented here as justifies the court in interfering. It must be stated here, that by agreement filed, counsel for both parties waived the right of trial by jury, and also the question raised in the answer filed as to the right of plaintiffs to jointly maintain this proceeding.

At a meeting of the respondent corporation held December 5, 1897, the following preamble and resolution were adopted, viz:

"Whereas, a manifesto has been isued and received by quite a number of the members of this Union, which manifesto bears the signature, 'Pittsburgh Musical Society,' with signatures of president and secretary -- A. G. Weiss, president, and Charles A. Young, secretary -- and, further, that the manifesto states that the Pittsburgh Musical Society is a member of the National League of Musicians of the U.S.; and is further misleading, inasmuch as it reflects unjustly upon the integrity of this Union, and, further, advocates the organization of a society under auspices that are in opposition to the action of the Union, after due notice to each member in writing, therefore, be it resolved, that the incoming board of directors make a thorough investigation of this action, summon such witnesses as they may deem proper to fix this act upon such member, or members, as are guilty of this action, and then proceed to a regular trial under the laws of this Union, and, if found guilty according to the laws of this Union, the penalty to be inflicted in such manner as the law warrants. An appeal from the board of directors to be allowed, provided, that the finding of the board be complied with first and all expenses of placing the entire record of the proceedings before the members of this Union be borne by the appellant, or appellants."

A copy of the manifesto referred to in the foregoing preamble and resolution is as follows, viz:

"A. G. Weiss, President, Chs. A. Young, Secretary, 303 Smithfield Street, Room 401, No. 1015, Penn Avenue, Office of Pittsburg Musical Society,

"Local 60, American Federation of Musicians (Affiliated with A.F. of L.).

"Affiliated with United Labor League of Western Penna.

"Members National League of Musicians of U.S.

"MANIFESTO.

"PITTSBURG, PA., November 29, 1897.

"To the Musicians of Pittsburg, Allegheny and Vicinity, Greeting:

"Owing to the unsatisfactory condition of musical protective organization affairs generally, in this vicinity, which was brought about in a peculiar manner, of which most of you are familiar, and inasmuch as the musicians here have, through beguilement and over-confidence in a few, been led into a misconception of the relations of the musical profession with other professions and trades, also on account of the decided stand taken by you against affiliation with laborers in other industries, as a result of the above-mentioned apparent trickery, it behooves the musicians to immediately rescind their former and present actions and place themselves on friendly terms with Union labor, ere the unionist class you as their enemies.

"In order that you may have an opportunity to hear this important subject discussed, both from Local and National standpoints, Pittsburg Musical Society, Local 60, American Federation of Musicians, has made arrangements for an open installation meeting to be held at K. of L. Hall, Market street and Third avenue, Friday morning, December 3, at 10 o'clock sharp, to which you are earnestly invited.

"We fully understand that for ten years you have had doctrines and ideas administered to you which generally were enacted into laws and they have finally proven absolutely disastrous, and it is now to your interest, both morally and financially, to consider the adoption of a new platform on which to labor in the musical profession, hence we impress on you to be present at this meeting.

"Prominent among those who will make addresses are: Hon. Owen Miller, St. Louis, President A.F. of M. ex-President N.L.M. of U.S.; Jacob Schmalz, Cincinnati, Secretary A.F. of M., member Executive Board N.L.M.; Geo. Nachman, Baltimore, 1st Vice-Pres. A.F. of M. and 1st Vice-Pres. N.L.M.; S. S. Bonbright, Cincinnati, Gen'l Organizer A.F. of M. and Editor 'American Musician;' I. J. Masten, Cleveland, President M.M.P.U.; M. M. Garland, Pittsburg, 4th Vice-Pres. A.F. of L.; Thos. Grundy, Pittsburg, Labor Leader; Mr. Klumpf, President United Labor League of Western Penn'a.

"Trusting you will appreciate the fact that the holding of this meeting is done with the sole purpose of showing you how you stand and the cause necessary for you to pursue to protect your interests, we are,

"Fraternally,

"PITTSBURG MUSICAL SOCIETY.

"Andrew G. Weiss, President.

"Charles A. Young, Secretary."

At a meeting of the board of directors of respondent, held January 23, 1898, the secretary was instructed to prefer charges against plaintiffs, and on February 14, 1898, each of the plaintiffs received notice to appear before the board on Sunday, February 20, 1898, to answer charges preferred by the secretary, of violation of article 2 of the constitution of the corporation, but no copy of the charges accompanied the notice. Plaintiffs appeared in response to said notice, and at the meeting the charges were read to plaintiffs, the same being as follows:

"No. 1 Wylie Ave., PITTSBURG, PA.

"Feb'y 14, 1898.

"To the Board of Directors of Musical Mutual Protective Union:

"I, the undersigned, in accordance with your instructions, do hereby charge A. G. Weiss and Chas. A. Young with the violation of article 2 of the constitution; said violation of the circulation of a manifesto among our members, bearing date of November 29, 1897, and bearing the signature of A. G. Weiss, president, and Chas. A. Young, secretary, the contents of which circular was calculated to disrupt and destroy the Musical Mutual Protective Union, Local No. 15, N.L.M. of U.S.

"Fraternally yours,

"THOMAS J. WELSH,

"Secretary."

At this meeting one witness was called, who stated he had received a copy of the manifesto. No other testimony was taken, and no action was taken, the plaintiffs protesting that they had not received any proper notice. On February 28, the plaintiffs each received another notice to appear before the board on Sunday, March 20, to answer charges preferred by Thomas J. Welsh, secretary, of violation of article 2 of the constitution, inclosing a copy of the charges, as given last above, signed by the secretary, but the notice was not accompanied by copy of the manifesto. Plaintiffs appeared in response to this notice. At this meeting a copy of the manifesto was produced, which the petitioners admitted they had signed, but no testimony was taken, nor was there any effort made to show that the manifesto was circulated by plaintiffs, or that it tended to disrupt or destroy the union, or cause the withdrawal of members, nor, indeed, was there anything tending to sustain the charges against plaintiffs, and they, after protesting as before, withdrew from the meeting. The matter was then dropped, but subsequently at the same meeting, and without passing upon the guilt or innocence of the plaintiffs of the offense charged, a resolution was passed erasing the names of the plaintiffs from the roll of membership of the union. At this meeting there were present eight of the members of the board, and while no votes were cast against the resolution of erasure, it is very doubtful that the requisite two thirds of those present were cast in its favor. Brecht, one of those present, says he did not vote; Welsh, the secretary, and nominally the prosecutor, says he did not vote. Allen, the president, says he only voted when there was a tie -- and it also appears plainly that he had prejudged the case and was disqualified to vote.

Can the proceeding here recited be properly called a trial in which were involved the rights and privileges of the plaintiffs? And can it be said that...