
    Austin v. Searing.
    
      An agreement by which the members of an association undertake to confer judicial powers, in respect to the property in which they have a common interest, upon a body o'f men or officers, to be from time to time selected out of the association at large, as a tribunal having general authority to adjudicate upon alleged violations of the rules of the association, and to decree a forfeiture of the rights, to such property, of the parties adjudged to have been guilty of such violation, is void. The courts will not aid in enforcing the judgment of a tribunal sought to be created by private compact, except in cases of a submission to arbitration of specific matters of controversy.
    
      It seems that the civil-courts will not take notice of or give effect to the constitution or laws of a voluntary, unincorporated association, nor regard a member thereof as coming under any obligation or disability, growing out of such constitution or laws, not proved to have been assumed by him in such a manner as would establish a valid contract between individuals not members of the association.
    The plaintiff, for himself and others, claimed title to certain personal property under an adjudication of a body, existing in an association of persons calling themselves Odd Fellows, known as the grand lodge, by whose adjudications. in all matters relating to the affairs, discipline and property of the association, it is assumed that the plaintiff and the defendants had, by an executory contract, agreed to be bound, both parties being members of such association, which is voluntary and unincorporated, and having contributed to the funds in controversy under that agreement; Se7d, that the courts will not enforce such a contract, nor lend their aid to give effect to the decrees of a tribunal thus constituted.
    
      Whether the act in relation to suits by and against joint stock companies and associations (eh. 258 of 1849), and the act to extend its provisions to companies having a joint and common interest in property (ck. 455 of 1851), include private partnerships or companies having more than seven member», not organized in pursuance of any statute, quere.
    
    Appeal from the Supreme Court. The question arose upon demurrer to the complaint, which states that the plaintiff sues according to the form of the statute, etc., as treasurer of Cayuga Lodge, No. 80, of the Independent Order of Odd Fellows of Northern New-York, an association of persons thirty-seven in number, who are named, and all of whom, it is averred, have an interest in the right of action, money, property and effects thereinafter mentioned as belonging to the association. It avers that there exists in the United States a benevolent and charitable association, comprising many thousand persons, denominated the Independent Order of Odd Fellows; that the organization of the said association admits the existence of several subdivisions or branches, each a perfect and complete association of itself, denominated grand lodges of the state or district in which the members reside; that these grand lodges are composed of certain members of subordinate lodges, who, by the constitution of the said grand lodges, are entitled to seats therein, and are represented by delegates in a national association or congress of representatives, which is denominated the Grand Lodge of the Independent Order of Odd Fellows in the United States of America, and is the superior council and supreme tribunal to which the grand lodges of the order in the several states are subordinate in jurisdiction and authority; that the grand lodge of each state is a complete association of itself, but subject at all times to the resolves, orders and decrees of the Grand Lodge of the United States, and has a constitution to which its members are obligated to subscribe; that there are two grand lodges in the State of New-York, organized under separate charters from the Grand Lodge of the United States; that one of these is styled the Grand Lodge of Northern New-York, within the jurisdiction of which there are upwards of four hundred minor lodges like that which the plaintiff represents, each of which is subordinate to the said grand lodge of the district, which is invested with ample authority at all times to revoke its charter, suspend or terminate its existence, and demand and receive its charter, books, papers, regalia, money, property and effects; that all the property of the subordinate lodge is held subject to the authority of the grand lodge to decree its confiscation, whenever in the opinion of said grand lodge, upon a case regularly brought before it, it shall satisfactorily appear that such subordinate lodge is guilty of insubordination to the constituted authorities of the order in the jurisdiction in which it is located; that one of these subordinate lodges exists in the city of Auburn, by virtue of a charter from the grand lodge of the district, called Cayuga Lodge, No. 80, of which the plaintiff is treasurer; that the members of this lodge are the owners of certain property and effects described in the complaint, in which each and every one of the members of the said lodge have an equal interest; that each member of a subordinate lodge subscribes to the articles of association or constitution of said lodge; that there had formerly existed a subordinate lodge in Auburn, called by the same name as the present lodge, of which the defendant and- the persons whom the plaintiff represents were mutually members; that charges have been preferred against this lodge to the grand lodge for insubordination, and that such proceedings have been had thereon that the charter of said lodge has been revoked, and the lodge regularly expelled, according to the constitution of the said grand lodge; that, according to the constitution of the grand lodge, the title of the Cayuga Lodge, No. 80, to its charter, books, papers, property and funds was, by the said act of expulsion, divested, and that the same became thereby¡ by the force and effect of such expulsion, the property of the grand lodge, as trustee, to be restored, in case the said subordinate lodge should be reinstated; that the defendants were officers of the said Cayuga Lodge a.t the time of its expulsion, and had the custody and control of its property and effects, which, by virtue of the constitution of the grand lodge, they held as trustees, subject to the order of the grand lodge; that the grand master of the grand lodge proceeded to demand of the defendants the property and effects of the expelled lodge, but that the defendants refused to transfer or surrender them; that the persons whom the plaintiff represents, not having participated in the acts of insubordination of the expelled lodge, had applied to the grand lodge to be restored to their former rights as a subordinate lodge, and had been thereupon restored to their original charter, and authorized to demand, recover and receive such effects, in whose hands soever the same might be found; that, by the terms of the respective constitutions of the said grand and subordinate lodges, the members of the Cayuga Lodge thus restored became thereby reinvested with the title to the property and effects of the former lodge; that this property had always been kept in a place in the city of Auburn, called Odd Fellows’ Hall, until after the expulsion of the lodge, when it was taken and carried away by the defendants, who have ever since kept and withheld the same from the officers of the grand lodge, and from the plaintiff and his associates.
    The complaint also charges a combination and confederacy on the part of the defendants to defraud the plaintiff and his associates, and to defeat their just "claims to the property and effects aforesaid; and concludes with a prayer that it might be adjudged and declared that the plaintiff, as treasurer of the restored lodge, is entitled to the property and effects of the original lodge, consisting of its charter, regalia, books, papers, &c.; that the defendants held the same in trust for him, and that they be ordered to account for and deliver over such property, or to make compensation therefor.
    
      Copies of the constitution of the grand lodge, and of the subordinate lodge, are annexed to and made part of the complaint, the provisions of which bear out the averments in the complaint in respect to them.
    To this complaint the defendants demurred, specifying various grounds of demurrer; among others, that the plaintiff has no legal capacity to bring the action as treasurer, without joining the persons in whose behalf he claims to sue, and that the complaint does not state facts sufficient to constitute a cause of action. The court at special term, in the seventh district, overruled the demurrer. Upon appeal, the court at general term reversed this judgment, and final judgment for the defendants having been perfected, the plaintiff appealed to this court, where the case was submitted on printed arguments.
    
      Benjamin F. Hall, for the appellant.
    Georg« Rathbun, for the respondents.
   Shankland, J.

It appears from the complaint, and the, documents therein referred to and made part thereof, that the Independent Order of Odd Fellows is a voluntary association, unincorporated; and that one of its professed objects is benevolence, to be bestowed on the members of the order who are in distress. The funds of the order are made up from assessments, initiation fees and other dues, specified in the rules of the association. It further appears that the association is composed of several judicatories or degrees, subject to a supreme or national council.

The defendants allege, in support of the demurrer, that the plaintiff is not entitled to sue alone, but should make all «his associates parties; and also that the complaint does not disclose a cause of action. The plaintiff relies on the acts of April 7th, 1849, and July 9th, 1851, as an answer to the first objection. The act of 1849 authorizes “ any joint stock company or association, consisting of seven or more shareholders or associates, to sue or 'be sued in the name of the president ór treasurer.” The act of 1851 extends the provisions of the first act “to any comp'jty or association composed of not less than seven persons, who are owners of or have an interest in any property, right of action or demand, jointly or in common, or who may be liable to any action on account of any such ownership or interest,” &c. I am of opinion these acts relate only to those associations or companies which are authorized, by acts of the legislature, for the various purposes of banting, insurance, railroads, plank roads, &c., with which our statute books abound, since the year 1838. They have no application to private voluntary copartnerships or associations, which are not organized in pursuance of some statute. These last associations must sue, as heretofore, by making all parties interested parties to the record, except where exonerated by the one hundred and thirteenth and one hundred and nineteenth sections of the Code, or, perhaps, in some other peculiar cases not necessary to be here noticed. The complaint discloses the fact that several other individuals, named therein, are interested equally with the plaintiff in the maintenance of this action, and in the avails thereof, if it can be sustained. The case falls, therefore, within subdivision four of section one hundred and forty-four of the Code, which allows a demurrer to be interposed when it shall appear that there is a defect of parties, plaintiff or defendant; and this defect is specially pointed out as the second ground of demurrer.

If the above conclusion is correct as to the validity of the objection of defect of parties, it must lead to an affirmance of the judgment of the Supreme Court at general term without deciding any other point in the case; but as other members of this court may not concur in that conclusion, I will briefly examine the main question discussed in the court below, and upon which its judgment rests. That question is substantially whether the courts will entertain a suit to enforce the adjudication of the self-constituted judicatories of the Order of Odd Fellows in the course of their discipline.

[The learned judge then proceeded to discuss this question, and arrived at a negative conclusion, for reasons which are more fully stated in the opinion of Judge Selbee.]

Selden, J.

The complaint, upon which the questions in this case arise, sets out what appears to be a regular governmental organization, with its constitution and laws, and powers legislative and judicial. The head of this organization is a congress of representatives, called the Grand Lodge of the United States, which not only legislates for all lodges in the several states, but also exercises judicial powers over them; for the complaint states that the grand lodges of the several states are subject at all times to the resolves, orders and decrees of the congress of representatives, and are amen, able to its constitutional authority. The grand lodges of the several states and districts éxercise similar powers. They grant, revoke and renew charters, make by-laws, and pass judicially upon charges presented against subordinate lodges, expelling or reinstating them at pleasure. These powers extend to the confiscation of the entire property of a subordinate lodge, whenever, in the opinion of the grand lodge upon a case brought regularly before it, it shall satisfactorily appear that such subordinate lodge is guilty of insubordination. Now all this is very well, so long as the lodges neither violate nor ask any aid from the law; but it may with pro-^ priety be doubted whether the judicial power of the state is to be invoked to uphold and enforce the decrees of these self-constituted judicatories.

It is to be remarked that these lodges are charitable insti tutions, whose objects commend them extensively to public favor, and that there are four hundred of them in northern New-York alone, and, being purely voluntary associations, there is, of course, no limit to the amount of property which they nuay acquire. If this suit can be maintained, then all this property however vast, is ultimately controlled, not by any power within the state, but by the Grand Lodge of the United States; for, by the constitution of these lodges, as given in the complaint, it will be seen that on the expulsion of any subordinate lodge (which is a matter resting entirely in the will of the grand lodge of the state or district), the whole property of the lodge expelled is, ipso facto, vested in the grand lodge, which is under no obligation to reinstate the lodge or restore the property; and, as the grand lodge of the state is bound to obey the decrees of the national lodge, the whole property is thus brought under the control of the latter. This is entirely unobjectionable, so long as submission to these decrees is merely voluntary; but the question is, whether that submission is to be legally and judicially enforced.

Let us see what a chancellor of England said about a case very similar to this. I refer to the case of Lloyd v. Loring (6 Ves., 733). That was a bill, filed by Evan Lloyd and two other persons, to get possession of the dresses, decorations, books, papers, &c., of a lodge of Free Masons, called the Caledonia Chapter, No. 2. The plaintiff stated that this lodge was regularly organized under a charter from the Grand or Head Chapter of Eoyal Arch Masons; that théy were its chief officers, and as such were entitled by virtue of the rules of the society to the charge and custody of the property &c., which the defendants had forcibly removed. The defendants demurred there, as here, to the bill. The opinion of Lord Chancellor Eld os', in that case, is so precisely applicable to this, that I will make one or two extracts from it. He said: “ A bill might be filed for a chattel, the plaintiffs stating themselves to be jointly interested in it with several other persons; but it would be very dangerous to take notice of them as a society having anything of constitution in it. In this bill there is a great affectation of a corporate character. They speak of their laws and constitution, and the original charter by which they were constituted. In Allen v. The Duke of Queensbury, Lord Thurlow said he would convince the parties that they had no laws and constitutions.” And again: “ That this court will hold jurisdiction to have a chattel delivered up, I have no doubt; but 1 am alarmed at the notion that these voluntary societies are to be permitted to state all their laws, forms and constitutions upon the record, and then to tell the court they are individuals, &c. The bill states that they subsist under a charter granted by persons who are now dead; and therefore, if this charter cannot be produced, the society is gone. Upon principles of policy, the courts of this country do not sit to determine upon charters granted by persons who have not the prerogative to grant charters.”

This appears to me to be apt and sensible language in the case in which it was used, where the charter, constitution, &c., were barely referred to ; but with what increased force does it apply to the case before us, in which we have spread upon the record two formal constitutions, one of which contains fifteen distinct articles, the other eleven, each article being subdivided into a variety of sections, and all together embracing a complete system of governmental polity. There is, however, no objection to all this, provided we apply to these articles the same rules as to ordinary agreements inter partes, and give to them no peculiar force as the constitution and laws of an organized body.

Admitting, then, the action to be well brought, in the name of the treasurer, under the act of April 7, 1849, about which I will not stop to inquire, it is clear that the plaintiff can only recover by showing either a legal or equitable title to the property in question in the lodge which he represents, that is, in the associated members of that lodge, How does he show this 1 It is conceded by the complaint that the property originally belonged to the lodge expelled, of which the defendants were members. The defendants, hevefore, were tenants in common, with the plaintiff and hi* as jociates, of the property, and had an equal right with them to its custody. It is incumbent on the plaintiff to show a legal transfer of this title. This he assumes to do by showing the expulsion, by the grand lodge, of the old Cayuga Lodge, and the restoration of the new. The effect is supposed to be wrought through the operation of the constitutions of the two lodges. But it is obvious that these constitutions can have no binding force whatever, except what they derive from the assent of each individual member. That is, any member, to be bound by them, must have personally assented to their provisions. It is only as contracts that these constitutions are in the least obligatory. The counsel for the plaintiff takes this view of the case in his printed argument. He says: “ The court is sitting to judge between individuals as to rights acquired by the contracts between them. It is immaterial whether such contracts are made in the form of subscriptions to general constitutions and by-laws or to separate articles of agreement.” Viewed, then, as contracts, these constitutions must be subject to the same rules with all other contracts. It must be clearly shown that the defendants have assented to the written constitutions of these lodges.

The complaint avers that the members of the present Cayuga Lodge “ have, each and every one of them, in conformity with the usages and requirements of the order, subscribed to an article of association denominated a constitution, a copy of which is hereunto annexed,” &c. There is also a general averment that the grand lodges in the several states have constitutions to which their members are obligated to subscribe, and do subscribe, and that one of these grand lodges is denominated the Grand Lodge of Northern New-York, and that this lodge has public and printed articles of association, styled a constitution, a copy of which is thereunto annexed. But there is no averment that this constitution was ever in fact subscribed by anybody, nor does the complaint contain any direct averment that the defendants ever subscribed the constitution of any lodge, either grand or subordinate. The averment relied upon by the plaintiff upon the subject is this: after stating the existence of the original Cayuga Lodge, and that the plaintiff and his associates and the defendants were all members of that lodge, the complaint proceeds thus: that, as such members and associates, they had, each and every of them, covenanted with each other to observe, obey, conform to and abide by the constitution, by-laws, rules and regulations of the saw lodge, and of said Grand Lodge of Northern New York.

Covenanted? How? Under their hands and seals? It is not so averred. There is neither proferí nor offer to produce the covenant. Will this do in a legal pleading ? I apprehend not. It is altogether toó vague.

Again, what constitution did they covenant to observe ? The averment says, “ The constitution, by-laws, Sc., of the Cayuga Lodge, and of said Grand Lodge of Northern New-York,” but does not set forth the constitutions in this connection, nor give any reference by which they can be identified or their provisions ascertained. We may conjecture that the plaintiff means the same constitutions which are referred to elsewhere in the-complaint, but it is not so averred.

If we look at the whole complaint, we shall see that it is not intended to be averred that the defendants ever subscribed the constitution of the grand lodge. This was done only by the members of the grand lodge itself. It is difficult to see, therefore, how the provisions of that instrument are to be made obligatory upon the defendants as a contract. There is nothing in the constitution of the expelled lodge (which probably was subscribed by the defendants, although that is not in terms averred) which adopts the constitution of the grand lodge. It is this latter constitution alone which confers the power by which the property in question is claimed to have been transferred.

But were it distinctly averred that the defendants had subscribed the constitution of the grand as well as of the subordinate lodge, I should still be of the opinion that public policy would not admit of parties binding themselves by such engagements. The effect of some of the provisions of these constitutions is to create a tribunal having power to adjudicate upon the rights of property of all the members of the subordinate lodges, and to transfer that property to others; the members of this tribunal being liable to constant fluctuations, and not subject in any case to the selection or control of the parties upon whose rights they sit in judgment.

To create a judicial tribunal is one of the functions of the sovereign power; and although parties may always make such tribunal for themselves, in any specific case, by a submission to arbitration, yet the power is guarded by the most cautious rules. A contract that the parties will submit, confers no power upon the arbitrator; and even where there is an actual submission, it may be revoked at any time. The law allows the party up to the last moment to ascertain whether there is not some covert bias or prejudice on the part of the arbitrator chosen.

It would hardly accord with this scrupulous care to secure fairness, in such cases, that parties should be held legally bound by the sort of engagement that exists here, by which the most extensive judicial powers are conferred upon bodies of men whose individual members are subject to continual fluctuation.

Upon all these grounds, therefore, and especially upon the ground that the complaint does not show that the defendants have ever assented to be bound by the provisions of the constitution of the Grand Lodge of Northern New-York, as the same is set forth in the complaint, I am of the opinion that the complaint is insufficient, and that the judgment of the Supreme Court should be affirmed.

Brown, J.

The plaintiff sues, as will be seen by the title, as the treasurer of Cayuga Lodge, No. 80, of the Independent Order of Odd Fellows of Northern New-York, to recover certain property, alleged to be owned by the said organization and wrongfully withheld by the defendants. The question is the right of property, and the plaintiff must show the title-of those he represents before he can recover. It is not claimed that Cayuga Lodge, No. 80, is a corporation, or has power to sue and be sued as such; but the action is brought under the provisions of the act of April 7th, 1849, and the amendment thereto, .passed July 9th, 1851, authorizing any company or association, composed of not less than seven persons, “who are owners of, or have an interest in, any property, 'right of action or demand, jointly or in common, or who may be liable to any action on account of such ownership or interest,” to sue and be sued in the name of the president or treasurer.

The property in controversy was held and owned by an association, of which the defendants were members, known ny the same name as that represented by the plaintiff, and was confiscated and the title declared to be vested in the plaintiff’s association, by a decree of the Grand Lodge of Odd Fellows of Northern New-York, to which both associations were subordinate, for some act of contumacy and insubordination committed by the defendants’ association, which it is not material to particularize further. This is the only title the plaintiff sets out in his complaint.

The by-laws and regulations of these voluntary associations may all be very well in their place and sphere, and may command generally the obedience and submission of those upon whom they are designed to act; they cannot, however, have the force of law, nor impair or affect the rights of property, against the will of its real owners. So long as the members of these bodies yield their assent or concurrence, it is all very well; the law ini reposes no obsta ele or objection. But when orders and de< -reea- / the char ncter of those referred to, are resisted, and the owners of property refuse to be deprived of it, then it will be found that property has rights, and the courts of justice have duties, of which the plaintiff in this action seems to have an indifferent conception. The courts of justice cannot be called upon to aid in. enforcing the decrees of these self-created judicatories. The confiscation and forfeiture of property is an act of sovereign power; and the aid of this or any other court will not be rendered to enforce such proceedings, or to recognize legal or supposed legal rights founded upon them.

After what has been said by Lord Eldon, in Lloyd v. Loring (6 Ves., 773), and by my learned associate, Judge Selden, in this case, I will not pursue the subject further. The judgment should be affirmed.

The court declined to pass upon the question whether the plaintiff was entitled to sue in the capacity of treasurer, under the statutes of 1849 and 1851, but all the judges concurred in the opinions delivered on the other ground.

Judgment affirmed  