Froelich v. Musicians Mutual Benefit Ass'n

93 Mo. App. 383, 1902 Mo. App. LEXIS 381

• Court: Missouri Court of Appeals
• Decided: March 18, 1902
• Status: Published

Opinions

BLAND, P. I.

Plaintiff is a member of the defendant association. During the strike of the employees of the St. Louis Transit Company ¿Lo the city of St. Louis, in the spring and summer of 1900, plaintiff rode on the street cars of the transit company for which he w.as fined five dollars by the defendant. Refusing to pay this fine the association was proceeding to expel him when he procured from the circuit court of the city of St. Louis an order restraining the defendant from expelling him. On final trial the injunction was made perpetual. Defendant appealed. The association is unincorporated and is composed exclusively of musicians. Its object, as expressed in article two of the articles of the association, is as follows:

“Art. 2. The object- of this association is to unite the instrumental portion of the musical profession, for the better protection of its interest in general and the establishment of a minimum rate of prices to be charged by the members of said association for their professional services and the enforcement, of good faith and fair dealing between its jnembers.”

The association had adopted an elaborate price list for musical entertainments, performances and services to be rendered by its members. Among its by-laws are the following:

“Sec. 1. It shall be the. duty of every member of this association to refuse to perform in any orchestra or band in which any person or persons are engaged in playing who are not in good standing with this association, except organists, directors of musical societies, members of traveling companies, soloists, quartettes and quintettes, who play only their own series of concerts, and contain no withdrawn or suspended members of this association. Traveling companies shall be limited to a stay of two weeks within the jurisdiction of this local. Also amateur orchestras giving concerts for their own benefit with provision, however, that member or members receive the price provided for such engagements in the price list. Any member who shall have violated this section shall be deemed to have committed a breach of good faith and fair dealing between himself and the members of this association, and shall be punished in accordance with article 60, section 4, of the by laws.

“Sec. 2. It shall be considered a breach of faith and violation of the price list for any member soliciting, or in any manner expressing himself to the effect that he desires or will accept any engagement for less than the stipulated price adopted by the association, and it shall be acceptable proof of the charge to -produce a sworn affidavit of non-members to corroborate such charges.

“Sec. 3. It shall be a like offense for a member to offer another member an engagement for less price than the price laid down in the price list.

“Sec. 4. It shall be the duty of every member to report immediately to the recording secretary any and all violations of the constitution, by-laws and rules of this association; and a failure to do so shall also be deemed a breach of good faith.

“Sec. 5. Any member who accepts tickets as part payment, gives or promises presents, allows himself to be fined, pays extortionate prices for an article, or any form of recompense, calculated to defeat the object of these by-laws, shall be subject to the same penalties as laid down in article 9, section 4.

“Sec. 6. Members of this association will not be permitted to volunteer their services for any purpose whatever, without a permit from the board of directors.

“Sec. 10. No band or bands belonging to the association shall be allowed to play in any parade, or for any entertainment of any character whatever, where a non-union band or bands are playing except (a) when such band or bands do not belong to this jurisdiction, and are escorting societies and other bodies not belonging to this city; or etc. . . .

“Sec. 21. No member of this association will be allowed to play with non-members within a radius of fifteen miles of the St. Louis courthouse.

“Sec. 22. Before sending out of the city for musicians, leaders must apply to the board of directors to see if competent men can not be procured at home from the association. Any violation of the above section shall be subjected to a fine of $10 or more, at the discretion of the board of directors.

“Sec. 28. No band shall be permitted to carry a banner or transparency for advertising purposes in parades where the music is furnished by contract with the Musicians’ Mutual Benefit Association. Any violation of the above will be subjected to a fine of $10.

“Sec. 29. That no member shall be permitted to make a contract to furnish an orchestra for any theatrical season engagement, where he can not be personally present.

“Sec. 30. Leaders or managers of theatre orchestra must engage and make contracts with the members of their orchestra for the following season, and file the same with the secretary on or before May 1. Any violation of the above will be subject to a fine, of $25.

“Sec. 31. That members of orchestras or bands can only be disengaged or, discharged by the leader or manager in said orchestra or band for neglect of business, or incapa.bility, or unbecoming conduct, and that no personal feeling shall justify any leader or manager in discharging a member of his orchestra or band during the season without consulting the board of directors,” and also the following by-laws under article five:

“Sec. 1. At the death of a member having been in good standing for the term of one year, counting this period of one year, from his first admission or from the date of his last reinstatement, this association will pay out of the general fund the sum of $50 towards defraying his funeral expenses, or to his legal heirs.

“Sec. 2. On application for relief from, any member, the board of directors shall have the power to donate such sums as they in their discretion shall deem proper from the urgency of the case; not to exceed $10 at any one application ' nor more than once in the same year to the same person.”

Appropriate penalties are provided for violations of these by-laws. The governing body of the association is made up of its officers. ■ On May 18, 1900, a special meeting of the association was held by its members and a resolution adopted providing for a fine of five dollars against any member of the association who might ride on the St. Louis Transit Company’s lines of street cars. At that time there was no bylaw of the association concerning strikes, sympathetic strikes or boycotts. Article thirteen of the articles of the association concerning amendments is as follows:

“Propositions to repeal, alter, add to, or amend any of the foregoing articles of this constitution and its by-laws, must be made in writing, at a regular meeting one month before action can be taken thereon, when, if a majority of all the members then and there present shall vote, by ballot, in favor. of said amendment, or amendments, then only shall it or they stand as a law or laws of the association.”

Plaintiff was not present at the adoption of the resolution or by-law of May 18, nor did he ever thereafter assent to it, nor was this by-law ever submitted at a regular meeting or any action taken on it after the meeting of May 18. The two principal contentions made by appellant, are, first, that the by-law of May 18, for violation of which plaintiff was fined, was not legally adopted and was void and that no fine could be rightfully imposed on him by the association for 1 its violation, and second, that the association is an unlawful ¡ one, having for its object the restraint of trade and that the i courts will not aid one to retain his membership in suchi an association.

In Conley v. Masonic Mutual Benefit Association, 9 L. R A. 428, the Supreme Court of Connecticut said, “The decisions of any kind of a voluntary society or association in admitting members, suspending or expelling them are of a quasi-judicial character. In such cases the courts never interfere except to ascertain whether or not the proceedings were pursuant to the rules and laws of the society and whether or not the proceedings were in good faith, and whether or not there was anything in the proceedings in violation of the laws of the land.” In Ryan v. Cudahy, 157 Ills. 108, s. c. 49 L. R. A. 353, it was held that, “Where one had been expelled from a voluntary association not in pursuance with the laws of the association and there was a property interest involved, a court of equity would interfere to restore his membership.”

The by-law of May 18 was not adopted at a regular meeting of the association, nor was it proposed in writing one month before its adoption as required by article thirteen of the constitution of the association. It failed, therefore, to become n by-law that was binding on the plaintiff who was not present at its adoption and had never assented to it. To enforce this by-law against plaintiff was not proceeding against .him aecording to the laws of the association, and to expel' him for ■the non-payment of the fine imposed for a violation of that ■by-law would not be in pursuance of the laws of the association. But this is not enough in itself to' authorize a court of equity to interfere. It must further appear that some property or civil right is involved in the controversy. So long as an association remains a voluntary one the courts have no jurisdic- : tion over it and the courts will not interpose between it and a member except for the sole purpose of protecting an interest the member may have in the property of the association. State ex rel. Georgia Medical Society, 38 Ga. 608; Baird v. Wells, L. R. 44 Ch. Div. 661; Littlejohn v. Blackburn, 45 L. J. Ch. N. S. 219; Rigby v. Connol, 28 Week. Rep. 650; Grand Lodge K. of P. v. People ex rel. Waldek Lodge No. 136 K. P., 60 Ill. App. 550; Von Arx v. San Francisco Gruetli Verein, 113 Oal. 377. The converse of this doctrine is true, i. e., that where a pecuniary or civil right is involved in the controversy and the association is a lawful one, a court of equity will interfere to’ protect a member from an unlawful or arbitrary suspension or expulsion. Cases, supra. In Lysaght v. St. Louis Operative Stonemasons’ Ass’n, 55 Mo. App. 538, it was held that, “Where the laws of a mutual benefit society provide for the payment of benefits to defray the funeral expenses of its members and their wives, the members have property rights in the society.” Xhe by-laws of the association provided that the sum of fifty dollars,shall_ be contributed by the association to the funeral expenses of its members. Eollowing the rule in the Lysaght case we hold that plaintiff has such a pecuniary interest in the association as to give the court jurisdiction to enjoin the association fromjdepriving him of his membership by proceedings not authorized by the laws of the association. In respect to the second contention of defendants, “that the association is an unlawful one' being in restraint of trade,” it will suffice to refer to its by-laws (supra) in support of this contention. These by-laws impose on the members of the association a nlost slavish observance of the most stringent rules and regulations in. the restraint of trade; so strict and far-reaching are they that no musician in the city of St. Louis and for that matter (if the allegations of the answer be taken as true, that the St. Louis association is but a local and that the association extends throughout the whole of the United States and has locals in all of the principal cities of the United States) in any city of the country can find employment as a musician unless he is a. member of the association. Such a confederation and combination is a trust pure and simple. State v. Firemen’s Fund Ins. Co., 152 Mo. l. c. 43; Moore v. Bennett, 140 Ill. 69.

Combinations and confederations in restraint of trade have been denounced by the common law from time immemorial as being against public policy. The Legislature of this State and the Legislatures of most, if not all, of the other States have made trusts the object of special legislation with a view to their suppression and prevention. The plaintiff is in\ the attitude of asking the court to keep him where the law says , he has no right to be and to retain him in a position where he may aid in the support and maintenance of an illegal association and where he may continue to support and keep up a monopoly of the services of musicians. Courts have never dealt'' with monopolies, except to restrain or destroy them, and we decline to depart from this wholesome rule in this ease and reverse the judgment with directions to the trial court to dissolve the injunction and to dismiss plaintiff’s bill.

Judges Barclay and Goode concur on the ground that plaintiff, upon the admitted facts, is,not in position to obtain of a court of equity the relief herein prayed.