
    R. W. Laflin v. State of Nebraska, ex rel. William L. Gray et al.
    Filed November 18, 1896.
    No. 7613.
    1. Mandamus: Duty: Enforcement. To authorize the issuing of a writ of mandanvus in this state, the duty in question must be one specially enjoined by law, or which results from the office or station of the respondent.
    2. -: Form of Writ. The peremptory writ of mandamus must conform strictly to the command of the alternative writ, or, in the absence of the alternative writ, to the prayer of the petition which is the basis of the proceeding, and clearly indicate the particular duty to be performed.
    Error from the district court of Lancaster county. Tried below before Hall, J.
    
      J. W. Carr and Pound & Burr, for plaintiff in error.
    
      Charles 0. Whedon and Charles :E. Magoon, contra.
    
   Post, 0. J.

This was an application for a writ of mandamus, addressed to the district court for Lancaster county. It appears from the allegations of the relators that they are members in good standing of the Ancient Order of United Workmen, “a fraternal and benevolent secret society, order, or association issuing fraternal insurance to the members thereof,” and that there are within this state numerous subordinate lodges of said order, under the immediate jurisdiction of a grand lodge, the latter being, in authority, subordinate to a supreme lodge. The constitution, a copy of which accompanies the petition, provides for the holding of sessions of the grand lodge biennially, and at a regular meeting thereof, held pursuant to constitutional authority, at the city of Lincoln, in the month of May, 1893, the city of Kearney was selected as the place for the meeting of the nest session of said grand lodge, in the month of May, 1895. At the meeting held as aforesaid in the year 1893 the following grand officers were in due form chosen and installed, to-wit: J. G. Tate, grand master workman; R. W. Laflin, grand foreman; J. C. Hayes, grand overseer; L. A. Paine, grand recorder; and E. A. Polley, grand receiver. By provision of the by-laws adopted in conformity with the constitution subordinate lodges are, at the stated meetings in March next preceding the sessions of the grand lodge, required to elect representatives to the said grand lodge; but, according to the petition, certain of the grand lodge officers, including the respondents herein, in order to postpone the election of their successors and to enable them to hold their said offices until the month of May, 1897, in violation of the constitution and by-laws of said order, conspired to prevent the holding of a session of the grand lodge in the year 1895; that in pursuit of such unlawful purpose respondents procured the submission to the several subordinate lodges of a resolution approving the plan so proposed, and upon the adoption thereof by a majority of the subordinate lodges the respondent Tate, as grand master workman, issued a formal announcement to the effect that the session of the grand lodge appointed for the city of Kearney, in the year last named, had been abandoned. The avowed reason for the action complained of, as appears from the petition, is the want of necessary funds to defray the expenses of a session of the grand lodge, but which, as charged by relators, is not in fact the real motive of the respondents. The prayer of the petition is for a writ of mandamus directed to the respondent Tate, as grand master workman (or, in his absence from the state, to the respondent Laflin, as grand foreman), commanding him- to notify all subordinate lodges that any and all action by them or the said respondents looking to an abandonment of the session of the grand lodge for the year 1895 is null and void, and to direct said subordinate lodges to elect representatives to the grand lodge for said year, at the time and in the manner prescribed by tbe laws of tbe order. An objection to tbe petition, in tbe nature of a general demurrer, was overruled and judgment entered awarding a peremptory writ of mandamus against tbe respondent Laflin, as acting-grand master workman, commanding bim “to immediately inspect tbe proceedings of tbe subordinate lodges touching tbe matter of tbe postponement and abandonment of tbe grand lodge in May, 1895, and require said proceedings to conform to tbe general laws, rules, and regulations of tbe supreme lodge of said order and tbe grand lodge of Nebraska.” Tbe objection to tbe petition was, we think, well taken, since respondents, however wrongful tbe alleged attempt to prevent tbe session of tbe grand lodge, are by no provision of tbe constitution or by-laws of tbe order charged with tbe particular duty sought to be enforced.

It is a familiar rule that to authorize tbe issuance of tbe writ of mandamus in this class of cases tbe particular duty in question must be one specially enjoined by law, or which results from tbe office or station of tbe respondent. (Thatcher v. Adams County, 19 Neb., 485.) Tbe provision for biennial sessions of tbe grand lodge, and also for tbe selection by subordinate lodges of representatives thereat, is obviously self-acting, and tbe latter are, by operation of law, charged with notice of tbe duty thus imposed upon them. Tbe by-law imposing such duty upon subordinate lodges is as much tbe law of tbe order as tbe constitution itself, or tbe statute under which it was created. (Presbyterian Church v. City of New York, 5 Cow. [N. Y.], 538; Kent v. Quicksilver Mining Co., 78 N. Y. 159; 1 Beach, Private Corporations, sec. 321.) Action such as contemplated by this proceeding, although reasonable and appropriate in tbe administration of tbe office of grand master workman, necessarily rests in tbe discretion of that officer, and the exercise of bis discretion in that regard is not tbe subject of judicial control.

It is also assigned as error that tbe peremptory writ of mandamus does not follow tbe petition, which, under the practice tolerated in this state, has usurped the office of the alternative writ. The relief sought, as we have seen, is a writ of mandamus requiring the respondent Tate, as grand master workman, to promulgate a particular notice directed to the subordinate lodges, while the writ awarded commands the officer named to inspect the proceedings of the several subordinate lodges touching the postponement of the grand lodge, and to require such proceedings to conform to the general rules and regulations of the supreme lodge of the order and the grand lodge of this state. The peremptory writ of mandamus, which has been likened to an execution, should conform strictly to the command of the alternative writ, and clearly indicate a particular duty to be performed. (2 Kinkead, Code Pleading, sec. 814; People v. Supervisors, 1 Hill [N. Y.], 50; Chance v. Temple, 1 Ia., 179; People v. Brooks, 57 Ill., 142; State v. County Judge, 12 Ia., 237; State v. Union Township, 43 N. J. Law, 518; School District v. Lauderlaugh, 80 Mo., 194.) According to the contention of relators, the judgment is responsive to the following allegations of the petition: “The fifth article of the constitution of said order requires the grand master workman to preside in the grand lodge, and to require conformity to the general laws, rules, and regulations of the supreme lodge and of the grand lodge.” By the article of the constitution above mentioned it is made the duty of the officer named to inspect the proceedings of subordinate lodges and require conformity with the general laws, rules, and regulations of the supreme lodge of the order and of the grand lodge of the state; but the order, as shown by exhibits accompanying the petition, is governed by a comprehensive system or code of laws, embracing numerous distinct and separate provisions binding upon the various subordinate lodges, and to which the grand master workman is required to exact obedience. The writ awarded, in general terms, commands the discharge by the plaintiff in error, as acting grand master workman, of the duties with which he is charged by the constitution and laws of the order respecting the proceedings of the subordinate lodges, and is, therefore, a wide departure from the precise duty alleged as the basis of the proceeding.

Judgment beyebsed.  