Ellerbe v. Faust, 119 Mo. 653 (Mo. 1894)

Mabtin (Special Judge).

The facts in this case are substantially like the facts in the case of Ellerbe v. Barney, with one exception. That exception includes some facts which tended to show that the respondent was not a member of the masonic mutual benefit association at the date of the assessments, for the collection of which this suit was brought. The court below held that he was not a member at that date, and entered judgment in his favor, from which the superintendent of insurance has appealed.

A clause in the constitution or charter of the association, as it existed in 1883, when the respondent became a member, provides, that: <£A requisite qualification for membership shall be that the applicant be a mason of good standing.” The association was established for the benefit of masons and their families. Another clause in the constitution or charter gave the board of directors power to make and amend by-laws relating to the forfeiture of membership, declaring the effect thereof, and the manner in which the same should be brought about.

In. October,. 1888, the grand lodge of free and accepted masons of. Missouri, including the subordinate lodge of said order, to which the respondent belonged, passed a resolution barring and denying saloon keepers (including the respondent who was and continued to be a saloon keeper) from the membership and privileges of said order of masons. The

respondent upon receiving notice of this action acquiesced in it and withdrew from his lodge, and thereafter ceased to be a mason in good standing.

In October, 1890, the masonic benefit association to which respondent also belonged, as already stated, desiring to comply with the spirit and intent of the order of the grand lodge passed a by-law to the effect that if any of its members should become a saloon-keeper or bar-keeper he should forfeit his membership in the same and all benefits therein, and his certificate of membership should thereby ipso facto become null and void. The by-law went further and provided that' a failure to give notice of the adoption of the by-law should have no effect on the forfeiture. It also delared it to be unlawful to pay any. benefits under any such certificate irrespective of any knowledge of the association, prior to the member’s death, of the fact of forfeiture or of the receipt of assessments after forfeiture. It also forbade the officers of the association, the executive committee and the board of directors, to receive any assessments from any member after notice of the existence of the facts constituting an ipso facto forfeiture of his-membership. Another by-law, or section of a by-law, provided that an “expulsion from his lodge, shall ipso facto work a forfeiture of membership in this association.”

The manifest intention of this action of the association was to keep in line with the lodges of the state from which alone its members were recruited. After passage of -the edict against saloon keepers by the united lodges of the state, no one pursuing the occupation of a saloon keeper, whether technically in, or formally expelled from, his lodge, could be received by the association as eligible to membership.

It is argued by counsel for appellant that the respondent was not within the purview of the by-law

recited by us, for the reason that be was a saloon keeper before and at the time it was passed, and, therefore, did not become one after its.passage. The by-law must be interpreted so as to meet the abuse or thing prohibited and to correct it if possible. The intention is manifest to prevent any of its members from pursuing the occupation of saloon keepers or bar-keepers. Of course it was not intended to affect the standing of any one who had pursued the .occupation of a saloon keeper, but who upon passage of the law discontinued that occupation. I think it was intended to apply to only such as should be or become saloon keepers after its passage. As the respondent is admitted to have continued to be a saloon keeper after its passage he comes within the operation of its provisions, and according to the declared effect of it, lost his membership ipso facto,* without any formal action of the association.

But irrespective of the by-law against saloon keepers passed by the association, it would seem that the respondent lost his membership in it, by virtue of the action of the lodge to which he belonged debarring him from membership therein, and the by-law of the association which declared that when a member of the association suffered expulsion from the lodge to which he belonged, he thereb3r ipso facto ceased to be a member of the association, without any action on its part.

It is contended by counsel for appellant that the respondent, although ceasing to be a member of the lodge to which he had belonged, was not formally expelled therefrom, and therefore did not strictly fall within the operation of the .by-law, which discontinued him as a member of the association ipso facto as soon as he was expelled from his lodge. The termination of his membership in his lodge was in substance and effect

an expulsion, although, not 'such in form. He was against his will debarred of all the rights and privileges of membership by the lodge, on account • of his being and continuing a saloon keeper. After this it is admitted that he took his “demit.” I don’t see what else he could have done. He had no rights in the lodge, and as a law abiding citizen it was his duty to go away.

It is, however, contended by counsel for appellant that after this forfeiture the officers of the association still recognized and treated him as a member in good standing and collected^ assessments from him prior to the date of the assessments for which this suit is brought, and that the effect of this treatment was to restore him to his membership by waiver of the forfeiture, notwithstanding he continued to pursue the occupation of a saloon keeper all the time. This position is attempted to be supported by an appeal to the doctrine of estoppel.

There are several reasons against this position, some of which may be briefly alluded to. It is possible that the board of directors could have changed the by-law directed against saloon keepers, and thus relieved the respondent from its effect. There is no evidence that the board did this, or that it approved of any act of its officers tending to continue the respondent as a member. Certainly the executive committee, and the other officers of the association, who are claimed to have made and collected assessments, were expressly forbidden by the by-law from doing this in respect to saloon keepers. The by-law could not be set aside by them. It also provides that no action by them in collecting assessments shall' operate to relieve any member from a forfeiture. Moreover, if a forfeiture took place under the by-law relating to an expulsion from-the member’s lodge — a forfeiture which ipso facto dis

continued the respondent’s membership, the directors, as well as the officers, in restoring him would seem to be acting in violation of the clause in the charter which authorized them to admit only masons in good standing.

Again, the elements of an estoppel in behalf of the association are evidently wanting. There is no evidence of fraud, misrepresentation or imposition upon the association. An estoppel which might possibly be invoked by the respondent in a suit against the association is not available in behalf of the association in its suit against the respondent. • The unbrought action of the respondent is not before us, and we,could not safely pass upon its merits in order to furnish the appellant with an estoppel.

Lastly, it is admitted by the appellant that the payments by respondent were actually made by' him in ignorance of the fact that his membership had been forfeited under the by-laws. He paid them under the impression and the belief that he still owed them. The appellant who received them under such circumstances has no equity as against the respondent, in attributing to them the effect of giving him a membership, which had been' taken from him; especially as appellant knew that it had no right to receive them. The right of the respondent to plead his ignorance in the payments as a fact of estoppel, belongs to him and not to the association. In his answer, however, he disavows the supposed advantage of such a plea, and alleges that he does not claim and never has claimed since knowledge of the by-laws; any rights of membership in the association.

As the assessments were made after the respondent ceased to be a rightful member of the association,! am convinced that the judgment of the court below was. correct, and that it should be affirmed, and it is so

ordered.

All the other judges concur in the result, except'Brace and Macfarlane, JJ., not sitting.

SEPARATE OPINION.

Black, C. J.

The judgment in this case should he affirmed for the reasons stated in the dissenting opinion in the case of the same plaintiff v. Barney. 'Entertaining the views there expressed it is not necessary to express any opinion as to the matters discussed in the foregoing opinion.

Burgess, J., concurs.