241 P.2d 761
No. 38,561Supreme Court of Kansas
Opinion filed March 8, 1952.
SYLLABUS BY THE COURT
1. FRATERNAL SOCIETIES — Expulsion of Member — Right to Resort to Courts. Following Porth v. Local Union 201, 171 Kan. 177, 231 P.2d 252, and other decisions cited in the opinion, it is held that courts will not interfere and take jurisdiction of cases involving the disciplining, expulsion, or suspension of members of fraternal and benevolent societies unless and until it appears such members have exhausted the remedies available to them within the Orders to which they belong.
2. SAME — Action to Enjoin Society With Trial of Member — Failure to Exhaust Remedies Within Society — Effect. In an action to enjoin the defendant, a fraternal benefit society, from proceeding with the trial of one of its members in a disciplinary proceeding based on charges of misconduct, and for other injunctive relief, the record is examined, and it is held, (1) the amended petition affirmatively disclosed plaintiff had not exhausted the remedies afforded him under the constitution and by-laws of the society prior to bringing the action, and (2) the trial court did not err in sustaining a demurrer to such pleading on the ground that under such circumstances it failed to state a cause of action.
Appeal from Shawnee district court, division No. 2; PAUL J. HEINZ, judge. Opinion filed March 8, 1952. Affirmed.
Howard F. McCue, of Topeka, argued the cause, and Roy N. McCue, of Topeka, and Don Williams, of Wamego, were with him on the briefs for the appellant.
Luke E. Hart, of St. Louis, Mo., argued the cause, an Clarence J. Malone, of Topeka, was with him on the briefs for the appellee.
The opinion of the court was delivered by
This is an action in which the plaintiff, as an associate member of a fraternal benefit society, i.e., The Knights of Columbus, a corporation, is seeking to have this court supervise, direct, and control disciplinary proceedings instituted against him by that organization for improper conduct under purported authority of its constitution and by-laws. The appeal is from a ruling of the trial court sustaining a demurrer to plaintiff’s amended petition.
The amended petition, hereinafter referred to as the petition, is lengthy and in such form its factual averments cannot be easily summarized. For that reason, and in order that there can be no
doubt as to the issues presented for decision on appeal, or confusion with respect to their decision, we attach a copy of such pleading to this opinion as an appendix where its allegations will be available for ready reference.
The certified copy of the short journal entry of judgment on file in the office of the clerk of this court serves a threefold purpose in that it reflects the reasons given by the trial court for sustaining the demurrer to the petition, the ground on which such demurrer was sustained, and the nature of the judgment rendered at the time of that action. It reads:
“Now, on this 1st day of August, 1951, the defendant’s demurrer to the amended petition of the plaintiff comes before the Court for determination, and the Court having carefully considered the amended petition and the authorities cited by the parties, finds: That the demurrer should be sustained on the ground that the amended petition fails to state a cause of action. It is my judgment that the action is prematurely brought for the reason that the amended petition clearly discloses that the plaintiff has not exhausted his remedy under the constitution and by-laws of the association. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED: That the defendant’s demurrer to the amended petition of the plaintiff be, and the same is, hereby sustained.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED: That the sustaining of this demurrer necessarily disposes of the motion of the plaintiff for a temporary injunction and the same is hereby overruled.”
There can be no doubt that in ruling on the demurrer the trial court was laboring under no misapprehension as to what plaintiff was required to set forth in his petition in order to state a cause of action under our decisions. Whatever may be held elsewhere the rule in this jurisdiction has always been that courts will not interfere and take jurisdiction of cases involving the disciplining, expulsion, or suspension of members of fraternal and benevolent societies unless and until it appears such members have exhausted the remedies available to them within the Orders to which they belong. For our latest decision on the subject, to which we adhere, see Porth v. Local Union 201, 171 Kan. 177, 231 P.2d 252. For others, wherein the same rule has been recognized, applied, and adhered to, see Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 P. 1003; Moore v. National Council, 65 Kan. 453, 70 P. 352; Modern Woodmen v. Taylor, 67 Kan. 368, 71 P. 807; Flynn v. Brotherhood of Railroad Trainmen, 111 Kan. 415, 207 P. 829; Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 28 P.2d 976; Radio Station KFH Co., v. Musicians Ass’n, Local No. 297, 169 Kan. 596, 220 P.2d 199; and other decisions therein cited.
With the rule established it becomes obvious the question remaining for decision is whether the trial court erred in concluding the petition failed to state a cause of action because such pleading clearly disclosed that plaintiff had not exhausted his remedies under the constitution and by-laws of the association.
Turning to the petition, and limited strictly to the question to which we have just referred, we note: (1) That paragraph 9 asserts charges have been preferred against plaintiff; (2) that paragraph 10 concedes he is entitled to a trial on those charges under existing rules and regulations of the Order; (3) that paragraph 11 states such charges have been placed for trial before the Board of Directors; (4) that paragraph 13 asserts removal of the charges for trial to the Board of Directors operates to deny plaintiff of his right of appeal and places in the hands of his accusers the right to hear those charges; (5) that paragraph 14 asserts plaintiff cannot obtain a fair trial within the Order because of divers reasons therein stated; (6) that paragraph 16 charges sections 189 to 192 incl. of the by-laws of the Order are unconstitutional and void because, under such sections, plaintiff would be subjected to trial before his accusers who also prosecute, hear and adjudicate the case; (7) that paragraph 19 states the removal of the charges subsequently preferred for trial before plaintiff’s accusers deprive him of his property and personal rights without due process of law; (8) that paragraph 20 alleges removal of the charges for hearing by the Board of Directors deprive plaintiff of certain constitutional rights; and, last but not least, (9) that the prayer of the petition itself, wherein plaintiff puts his finger upon the relief he seeks, is that defendant be enjoined from proceeding with his trial. We note also that the petition contains no allegations to the effect plaintiff has either demanded or been denied a trial on the charges preferred against him.
When the foregoing allegations of the petition and others to which we have not specifically referred are carefully analyzed it becomes crystal clear that the charges made against plaintiff are still pending and undisposed of within the Order, that he is entitled to a hearing and trial on such charges under its constitution and by-laws and that he has not been denied, but is seeking to avoid, such a hearing and trial. In view of that situation and of what has been heretofore stated we have little difficulty in concluding it affirmatively appears from the face of the petition that plaintiff had not exhausted the rights and remedies available to
him within the Order before resorting to the courts for relief. It follows the trial court properly concluded the petition did not state a cause of action and that its order in sustaining the demurrer to the petition must be upheld.
In view of the conclusion just announced it is unnecessary to discuss or determine questions raised by the parties touching matters over which this court will not assume jurisdiction until its aid is invoked in an action wherein it appears the plaintiff has exhausted the remedies afforded him by the constitution and by-laws of the Order of which he is a member.
The judgment is affirmed.