Emma v. Loggia Fasci Italici No. 16

145 A. 630, 7 N.J. Misc. 387, 1929 N.J. Sup. Ct. LEXIS 312

• Court: Supreme Court of New Jersey
• Decided: April 11, 1929
• Status: Published

Opinion

Per Curiam.

The alternative writ sets out the same facts in substance as appear in the.previous memorandum by this court, ubi supra, and which may be abridged thus: Relator being a member in good standing of Loggia No. 16, an unincorporated subordinate lodge of the incorporated New Jersey Grand Lodge, Order Sons of Italy in America, thereafter joined an organization of somewhat similar name, which for convenience will be called the “Independent Order.” He was notified by respondents that he could not, under the rules, belong to both orders at the same time, and should resign from the respondent order, else he would be expelled. He refused to resign and was expelled, illegally as he claims, and by this proceeding asks for reinstatement under the authority of this court. One answer made and which we deem adequate, is that a remedy was provided for him by the rules of the order, which he should have exhausted before coming here; and that not only has he not exhausted that remedy, but has not even invoked it. Relator claims that this is a 'case in which he is not required to invoke the tribunals of the order, but may come here in the first instance.

The rules applicable to this class of cases were formulated by former Mr. Justice Yan Syckel of this court, in the case of Roxbury Lodge v. Hocking, 60 N. J. L. 439 (at pp. 440, 441), and may be stated" as follows:

1. Where, the question is a social one, involving discipline or the. conduct or standing of a member, he must exhaust his remedy within the organization if such remedy is provided before invoking the aid of courts of law. See Grant v. Ancient Order of Foresters, 75 N. J. L. 109; Zeliff v. Knights of Pythias, 53 Id. 536.

2. But if the controversy involve property rights, then in the absence of regulations amounting to an express agreement to exhaust remedies within the order, the courts will intervene to protect such property rights. Byrne v. Supreme Circle, 74 N. J. L. 258, was a case in this class.

3. On the other hand, even if property rights are involved, still if the rules of the organization provide a remedy within that body, and members have agreed to exhaust that remedy before application to the law courts, the latter will not interfere until that remedy has been exhausted. Ocean Castle v. Smith, 58 N. J. L. 545; affirmed, Smith v. Ocean Castle, 59 Id. 198.

4. But in case of property rights it should be clear that these are cognizable by the tribunals established within the order. Roxbury Lodge v. Hocking, supra.

In the present case, participation in a mortuary fund is involved, and that is a property right.

We proceed, therefore, to examine the regulations o£ the order as laid before us, and find that section 368 provides in general terms: “No officer or brother may institute proceedings before the civil courts of law without former proceedings being had before the arbitral boards.” A second paragraph goes on to say that failure to comply with this provision works automatic expulsion, but until respondents invoke that paragraph in resistance to an appeal within the order, we refrain from passing on its validity, particularly as it is neither defended nor attacked. Purther examination of the regulations shows a complete scheme of procedure, original and appellate; so then the case appears to fall clearly within the rule of Smith v. Ocean Castle, supra. To the contrary it is urged that the appellate scheme is inapplicable because relator was summarily expelled without trial. In answer to this it is sufficient to say that perhaps a majority of these fraternal order cases are of just this character.

There will be judgment for the respondents on the demurrer.