Opinion
No. 21820.
October 6, 1952.
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT, JACKSON COUNTY, RAY G. COWAN, J.
Ralph Shepard, Kansas City, for appellant.
Sol M. Yarowsky, Kansas City, for respondent.
This is an action by a labor union, Communications Workers of America, Local 6325, a voluntary unincorporated association, to recover a fine which the union assessed against one of its members, Ruth Brown, for an alleged violation of its constitution and by-laws. The suit was instituted in a magistrate's court in Jackson County. Both the magistrate court and the circuit court, upon appeal, sustained the defendant's motion to quash the constable's return upon to quash the constable's return upon the ground that the union, a voluntary unincorporated association, was not a suable entity, and, there being no statute authorizing it to maintain a suit, it could not institute and maintain this action in its name and capacity as a voluntary unincorporated association.
Plaintiff perfected its appeal to the Supreme Court on the theory that the suit required construction of certain provisions of the Constitution of 1945. The court held that there was no constitutional question involved and transferred the cause here. See 247 S.W.2d 815.
The appeal is submitted upon an "Agreed Statement of Case." The pleadings, motions and record entries are not before us. The record consists of the "Agreed Case," the court's judgment sustaining the motion to quash the constable's return, and copy of the notice of appeal. This procedure is permissible under Section 512.120, RSMo 1949, V.A.M.S. It provides: "When the questions presented by an appeal can be determined without an examination of all the pleadings, evidence, and proceedings in the court below, the parties may prepare and sign a statement of the case showing how the questions arose and were decided in the trial court and setting forth only so many of the facts averred and proved * * * as are essential to a decision of the questions by the appellate court. The statement shall include a copy of the judgment or order appealed from, a copy of the notice of appeal with its filing date, and a concise statement of the points to be relied on by the appellant. * * *" (Italics ours.)
Because of its importance, we set out in full the "Agreed Statement of Case," which reads:
"Communications Worker's of America, Local 4100, now Local 6325, brought suit to recover a fine levied under the Union's Constitution and bylaws for an alleged breach of the Constitution and by-laws by the defendant who was a dues-paying member at the time of the alleged breach. Plaintiff offered evidence of a signed application for membership in the plaintiff organization which contained a printed promise to obey the Union's Constitution and by-laws if accepted for membership. Plaintiff alleged that it was a corporation within the meaning of the law of Missouri and which was placed in issue by defendant by filing a motion to quash the return of the constable's summons for the reason that plaintiff was an unincorporated voluntary association and lacked the capacity to sue under present Missouri law. Section 509.290 subd. 1(7), RSMo 1949, V.A. M.S. Defendant's view was upheld by both the Magistrate and Circuit Courts.
" Plaintiff contends that it is a corporation within the meaning of the Constitution of Missouri under Article XI, Section 1 and Article I, Section 29, V.A.M.S., but that regardless of whether it is that defendant is estopped from raising the question of capacity to sue since defendant contracted with plaintiff as an entity and received things of value from it. This defendant denies. Plaintiff contends that the Constitution and By-laws form a contract and that membership is a thing of value received. But defendant's position is that this is not sufficient in law to overcome the basic legal incapacity to bring suit or to be sued in the common name of plaintiff's labor organization." (Italics ours.) The "Statement" was signed by the attorneys and approved by the trial judge.
It will be observed that in the "Agreed Case" the only allegation of the petition asserted as authority for plaintiff's right to maintain a suit in its associate name is the statement that "plaintiff alleged that it was a corporation within the meaning of the law of Missouri"; and that one issue was presented by defendant's motion to quash the constable's return. In its "Statement of Points to be relied on," plaintiff asserts "that it is a corporation within the meaning of the Constitution of Missouri under art. XI, Sec. 1, and art. I, Sec. 29, but that regardless of whether it is, the defendant is estopped from raising the question of capacity to sue since defendant contracted with plaintiff as an entity and received things of value from it. * * * That the constitution and by-laws form a contract and that membership is a thing of value."
Discussing first the "contention" or "point" that defendant is, for certain assigned reasons, estopped to deny plaintiff's suable entity, it seems necessary to say only that the "Statement of Case" does not assert or even indicate that plaintiff's petition was based on the theory of estoppel by contract. We do not have the petition or motion before us and, of necessity, are limited to a consideration of the allegation specifically referred to in the "Statement of Case," which is: "* * * that plaintiff is a corporation within the meaning of the law of Missouri * * *" and, for that reason, had the right to maintain the suit in its associate name. The order sustaining defendant's motion assigns no reason therefor and is of no assistance to us in determining whether the question of estoppel by contract was properly before the trial court. We will not convict the court of error on an issue which may not have been before it. For this reason the cases cited by plaintiff, holding that a person may be estopped to deny the suitable entity of a voluntary unincorporated association in a suit upon a contract between such person and the association, are not controlling. A mere reading of the opinion in Clark v. Grand Lodge of Brotherhood of Railroad Trainmen, 328 Mo. 1084, 43 S.W.2d 404, 88 A.L.R. 150, cited by plaintiff, will illustrate the vast difference in the facts and issues in that, and similar cases, to the limited field of inquiry in the instant case.
In the briefs the parties discuss certain allegations of the petition and disagree on the sufficiency thereof; they also discuss whether the petition alleges sufficient facts to raise the issue of estoppel by contract. Not having the petition before us, we decline to decide such controverted issues. The "Statement of Case" limits our field of review to allegations and issues agreed to therein. The question of estoppel is not properly before us for decision.
Plaintiff's other contention is that the court erred in sustaining defendant's motion because, "within certain narrow limits, plaintiff is a corporation within the meaning of the Constitution and laws of Missouri" and, as such, is authorized to maintain this suit. It does not claim that there is any statute authorizing it to sue or to be sued in its associate name. It relies entirely upon the provisions of Sec. 1, art. XI, and Sec. 29, art. I, of the 1945 Constitution.
Sec. 1, art. XI, provides "The term `corporation,' as used in this article, shall be construed to include all joint stock companies or associations having any powers or privileges not possessed by individuals or partnerships." The St. Louis Court of Appeals, in an injunction suit involving the converse of the question presented here, has considered the meaning and scope of this section; Forest City Mfg. Co. v. International Ladies Garment Workers' Union, 233 Mo.App. 935, 111 S.W.2d 934. The union was being sued and it successfully contended that Sec. 1, art. XI, did not make it a suable entity. The court, in a well considered opinion, said, 233 Mo.App. at page 936, 111 S.W.2d at page 936: "Now the general rule is well settled that a voluntary unincorporated association, in the absence of statutory authority, does not have the legal capacity to sue or be sued in its common or associate name. This of course for the reason that such an association is `purely a creature of convention, organized and existing under the common-law right of contract only,' and having no legal entity distinct from that of its members. * * * So it follows that if voluntary unincorporated associations are to be constituted suable entities in this state, the Legislature must so provide, either by direct legislation affecting all such associations, or else by conferring that status upon particular classes of associations whenever it deems that the public interest so requires. In other words, the question is purely one of legislative policy, with the merits of which the courts, within their special province, are not concerned. As the law now stands, our Supreme Court has spoken definitely and repeatedly upon the question of the nonsuability of such associations, and until such time as the present state of the law upon that subject may be changed it is our plain duty to follow the letter of those decisions. * * *" See, also, Ruggles v. International Ass'n, etc., Iron Workers, 331 Mo. 20, 52 S.W.2d 860; and Corbett v. Milk Wagon Drivers Union, Mo.App., 84 S.W.2d 377.
To date the Legislature has not enacted any statute granting voluntary unincorporated associations the right to sue or to be sued in the common name of the association. This problem was recognized by the Congress of the United States and was the basis of Sec. 301(b) of the Taft-Hartley Act of 1947, 29 U.S.C.A. § 185(b). This section provides: "(b) * * * Any such labor organization may sue or be sued as an entity * * * in the courts of the United States." (Italics ours.)
However, plaintiff contends that Sec. 29, art. I, authorizes it to maintain the action in its own name. This section is a new constitutional provision in this state. It reads: "That employees shall have the right to organize and to bargain collectively through representatives of their own choosing." From what we have said about the issues, it is perfectly apparent that there is no question here of the employees' "right to organize and to bargain collectively." We are concerned with the issue whether this section authorizes plaintiff to bring the suit in its associate name. It relies heavily on the opinion in City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539.
That was a suit for a declaratory judgment brought by the city against "the officers and representatives of the union"; not against the union in its adopted name. The principal issue was whether municipal employees could organize a labor union and bargain collectively with the city concerning compensation and general working conditions. The court said that, 206 S.W.2d at page 542 "there is nothing improper in the organization of municipal employees into labor unions; and that no new constitutional provisions (Sec. 29) were necessary to authorize them. However, collective bargaining by public employees is an entirely different matter"; and held that such employees could not "bargain collectively" with the city concerning compensation and working conditions. In a general discussion of Sec. 29, the court did say that "It was intended to safeguard collective bargaining as that term was usually understood in employer and employee relations in private industry. * * * Thus the principal purpose of Section 29 was to declare that such rights of collective bargaining were established in this state. It means that employees have the right to organize and function for a special purpose: namely, for the purpose of collective bargaining. Surely the real purpose of such bargaining is to reach agreements and to result in binding contracts between unions representing employees and their employer." The court did not discuss or decide whether a voluntary unincorporated association was authorized, under Sec. 29, to sue or be sued in its associate name. In that case the officers of the union were made parties, not the union by name.
There is a line of cases holding that a labor union may be so organized and conduct its business in such a way that it takes on some of the attributes of a corporation and may sue or be sued on its contracts. Such a case is Clark v. Grand Lodge of Brotherhood Trainmen, supra. But in those case is Clark v. Grand Lodge of Brotherhood Trainmen, supra. But in those cases the court had before it a complete and detailed statement of the pleadings and all the facts. In the instant case we have nothing before us except the general statements contained in the "Statement of Case" which gives no facts or information concerning the constitution and bylaws of plaintiff or the manner in which it conducts its business, or any of the terms and provisions of a contract or the relationship of the parties upon which it relies to maintain this suit in its associate name.
Sec. 512.120, supra, under which the parties seek to submit the case, requires that the "statement of case" must contain the facts essential to a decision of the questions sought to be presented. That is not done in the instant case and we do not feel called upon to discuss a hypothetical question of law without any restraint or guidance of pleadings and facts.
In its brief plaintiff is careful to say that it "is more interested than respondent (defendant) in maintaining intact the general rule that an unincorporated association is not a suable entity, but this case is based upon one recognized exception to this rule, i. e., that the defendant is estopped to deny the entity existence of plaintiff in a suit on a contract between plaintiff and defendant when defendant has received something of value (membership and its benefits) from plaintiff under that very contract, * *." If plaintiff desired to emerge from the shield of protection against being sued, as afforded by the general rule, supra, and bring itself within the one exception claimed, then it should have presented to this court sufficient pleadings and facts to permit an intelligent discussion and decision of such an issue. It has not done so.
The judgment is affirmed.
All concur.