Opinion
No. 284
10-29-1956
Russell W. MOONEY and William K. Herndon, Petitioners and Respondents, v. BARTENDERS UNION LOCAL NO. 284, an unincorporated association, and Earl Hyatt, Secretary-Treasurer of Bartenders Union Local, an unincorporated association, Defendants and Appellants.* Civ. 21568.
Alexander H. Schullman, Abe Mutchnik, Los Angeles, for appellants. Harry W. Dudley, Los Angeles, for respondents.
Russell W. MOONEY and William K. Herndon, Petitioners and Respondents,
v.
BARTENDERS UNION LOCAL NO. 284, an unincorporated association, and Earl Hyatt, Secretary-Treasurer of Bartenders Union Local No. 284, an unincorporated association, Defendants and Appellants.*
Oct. 29, 1956.
Rehearing Denied Nov. 21, 1956.
Hearing Granted Dec. 24, 1956.
Alexander H. Schullman, Abe Mutchnik, Los Angeles, for appellants.
Harry W. Dudley, Los Angeles, for respondents.
Elmer H. V. Hoffman, Los Angeles, amicus curiae.
FOURT, Justice.
This is an appeal from a judgment wherein it was directed that a writ of mandate issue in favor of respondent Russell W. Mooney to permit him and/or his agent 'to inspect all books of account, records, papers and documents of said (appellant) Union from July 1, 1947, to the date of this judgment, and to permit said (respondent Mooney) and/or his said agent to make copies of all or any part of said books of account, records, papers and documents, * * *.'
Respondent Mooney is a member of the appellant Union in good standing. The appellant Union is a local subsidiary of the Hotel and Restaurant Employees and Bartenders International Union, A. F. L., with headquarters in Cincinnati, Ohio.
Mooney filed a petition for a writ of mandate on July 21, 1955, and prayed for an order substantially like the one which was granted. The petition set forth that he was entitled to examine the items in question 'by virtue of * * * membership in said Union'.
The Union filed an answer and a demurrer to the petition, simultaneously, on August 23, 1955. In the answer it was set forth that 'at all times, monthly and quarterly reports setting forth the monthly records from the books and records of the Union showing statement of receipts and disbursements and statement of financial condition, and quarterly and audit report is prepared by a certified public accountant, and that both the monthly and quarterly reports are read at the meetings of the membership of the respondent union and then posted, available for the inspection of the general membership. Respondents further allege that such monthly and quarterly reports at all times have been read at all such meetings of the membership and have been available and now are available to petitioners, and that in fact petitioner Russell W. Mooney has read and made copies, as respondents are informed and believe, and therefore allege, of the monthly and quarterly report within the last twelve months of the respondent union.'
It was further set forth that respondents had failed to exhaust their internal remedies within the International, that respondents were on a 'fishing expedition', and that respondents came into court with 'unclean hands'. In this connection, appellants allege: 'That petitioner Russell W. Mooney has for Many years harassed, vexed, annoyed and sued the respondent union, Local No. 284 at great cost to the union, has publicly defamed the local and its officers without in fact, as required by the Constitution of the International, 'Exhibit D' hereof, filing any charges against any officers or taking any action within the Union or the International; that the present petition is but an additional factor to expose the respondent union local to great expense in defending the action, without any purpose whatsoever consistent with the right of membership. That in addition, petitioner Russell W. Mooney has engaged in assault and battery with a member of the respondent union based upon petitioner's action previously filed, as set forth above in Superior Court; and that all these things have been done for the purpose of damaging, affecting, injuring and harassing the union and preventing its operation in the ordinary course of business; and that therefore, petitioners came into court with unclean hands and their petition should be denied.'
The matter was submitted to the trial judge without argument on August 24, 1955, and on the same day the judge issued an order that the demurrer be overruled and that the writ be granted. Findings of fact and conclusions of law were filed on September 6, 1955. In the findings the judge found, among other things, that the reports to the general meetings alleged were not sufficient to preclude a member from inspecting the books of account, records, papers and documents of said Union and 'that it is not true that the quarterly financial reports and monthly reports mentioned in paragraph III and IV of the answer herein set forth sufficient detail with respect to the financial business of respondent Union so as to properly advise each and every member of respondent Union.'
The findings then set forth, in effect, that respondents had exhausted their internal remedies within the Local and International by stating, '* * * but that there are no internal remedies provided by respondent Union or its said parent organization for the purpose of affording a member of respondent Union an inspection of the books of accounts, records, papers and/or documents of respondent Union.'
Thereafter, it was found that it was not true that respondents were on a 'fishing expedition', or that they had come into court with unclean hands.
Appellants first contend that the constitution of the International and the bylaws of the Local constitute a contract between the Union and the respondents, and exactly define the rights and powers in reference to the examination of the books, etc., of the Local. The articles and the constitution and the bylaws of the International and Local do constitute a contract between the members and the unincorporated association and are binding upon the respondents. De Mille v. American Fed. of Radio Artists, 31 Cal.2d 139, 146, 187 P.2d 769, 175 A.L.R. 382. The constitution and bylaws must of necessity be read together to determine their meaning and force. The documents in question appear to us to be clear and unambiguous and spell out the rights and duties of the respective parties. It was appropriately said in Sass v. Hank, 108 Cal.App.2d 207, 215, 238 P.2d 652, 657:
'The language of a contract must control its interpretation when its diction is clear, reasonable and explicit and is in harmony with the general purpose of the agreement. Civil Code, secs. 1638, 1641. It is the function of a court to follow this rule and not to make a new contract or to rewrite or alter by construction what has been agreed to by the contracting parties.'
And in Cousins Inv. Co. v. Hastings Clothing Co., 45 Cal.App.2d 141, 147, 113 P.2d 878, 881, the court stated:
'Moreover, as set forth in 12 American Jurisprudence, page 749: 'A court is not at liberty to revise an agreement while professing to construe it. Nor does it have the right to make a contract for the parties--that is, a contract different from that actually entered into by them. Neither abstract justice nor the rule of liberal construction justifies the creation of a contract for the parties which they did not make themselves or the imposition upon one party to a contract of an obligation not assumed. Courts cannot make for the parties better agreements than they themselves have been satisfied to make or rewrite contracts because they operate harshly or inequitably as to one of the parties.''
Appellants then contend that the respondents made no showing of any equitable right to the relief sought, their being no pleading or proof of any necessity or imminent, irreparable damage. Mandamus is an extraordinary remedy which is equitable in nature and the necessity of issuing the writ should be clearly established. In Ault v. Council of City of San Rafael, 17 Cal.2d 415, at page 417, 110 P.2d 379, at page 380, the court said:
'The granting of a writ of mandate is discretionary and it will be granted only where necessary to protect a substantial right and only when it is shown that some substantial damage will be suffered by the petitioner if said writ is denied. [Citing cases.] It therefore follows that a petitioner upon application must show that as a result of a failure to grant such writ, he will suffer some substantial damage.'
Further, the cases are clear to the effect that mandamus lies only to enforce the performance of an act which the law enjoins. Bollotin v. Workman Service Co., 128 Cal.App.2d 339, 275 P.2d 599; Noble v. California Prune & Apricot Growers Association, 98 Cal.App. 230, 276 P. 636.
In 137 A.L.R. 311, 312, the general rule with reference to the use of mandamus against unincorporated associations or its officers is stated as follows:
'As a general proposition the proper function of mandamus is to compel inferior or subordinate tribunals and all others exercising public authority to do their duty. It is not available as a remedy between individuals to enforce purely private rights, and as a general rule, will not lie to compel the performance of purely contractual obligations. 34 Am.Jur. 879, Mandamus, § 91.
'Specifically, as to unincorporated associations, it has been held generally, although not universally, that mandamus will not lie against an unincorporated association or its officers, and will not be awarded to regulate the internal affairs of the association or to review the decisions of its self-created tribunal, at least in the absence of statutory authorization.'
The rule in California is set forth clearly in Cason v. Glass Bottle Blowers Ass'n, 37 Cal.2d 134, 140, 231 P.2d 6, 9, 21 A.L.R.2d 1387, where it is said:
'It is clear that mandate is available in this state against an unincorporated association. [Citing cases.]'
In six of the cases cited the problem dealt with the expulsion of a member; in one the question was in reference to the removal of an officer of the union from his office and damages for the unexpired term; and one was with reference to an out-of-state applicant seeking membership where the court held that to prevail he must show that he is entitled to membership and that he is being arbitrarily kept out. There is, however, a marked difference between the cases just referred to and the case at hand.
Expulsion from a union would ordinarily seriously affect a workingman's very livelihood and the injury from such a course of conduct, for all intents and purposes, would be irreparable and mandamus quite properly should lie. However, that does not mean that the right should be extended to include the right to examine all and every book, record, document and account of a union over a nine-year period. And certainly the right should not be extended in the absence of any pleading in reference to the necessity therefor.
Appellants also contend that respondents come into this case with 'unclean hands'. The allegations of appellants in their answer in this connection were in no way controverted, and the rule is that affirmative allegations of an answer, if not demurrable, are to be taken as true, unless they are countervailed by proof presented by the petitioner. Loveland v. City of Oakland, 69 Cal.App.2d 399, 404, 159 P.2d 70; Vanderbush v. Board of Public Works, 62 Cal.App. 771, 775, 217 P. 785; Friedland v. Superior Court, 67 Cal.App.2d 619, 623, 155 P.2d 90. As said in Brown v. Superior Court, 10 Cal.App.2d 365, 368, 52 P.2d 256, 258:
'The application for the writ [of mandate] having been submitted on the petition and the answer thereto, we must accept the allegations in the answer as true.'
Appellants also assert that the respondents have a further source of remedy within the International itself, and therefore their resort to the courts is premature. The respondent appealed to the General President of the International, and received a reply to the effect that he could inspect the quarterly financial reports of the Local at any time, and that with regard to any other records of the Local Union, those were the property of the Local and inspection of them was subject to the policy of the Local Union. The court's finding in this connection apparently failed to take into consideration the sections of the constitution set forth below. 1 There was no showing whatsoever in this case that respondents sought to take their grievance to the General Executive Board as in required by the constitution. The Supreme Court recently stated in Holderby v. International Union, etc., Engrs., 45 Cal.2d 843, at page 846, 291 P.2d 463, at page 466:
'It is the general and well established jurisdictional rule that a plaintiff who seeks judicial relief against an organization of which he is a member must first invoke and exhaust the remedies provided by that organization applicable to his grievance. [Citing cases.] This rule is analogus to the rule requiring the exhaustion of administrative remedies as a condition precedent to resorting to the courts (see 2 Cal.Jur.2d 304), and to the rule requiring the parties to a contract for arbitration of disputes to exhaust those remedies before seeking judicial relief. [Citing cases.] Such rules are based on a practical approach to the solution of internal problems, complaints and grievances that arise between parties functioning pursuant to special and complex agreement or other arrangements. They make possible the settlement of such matters by simple, expeditious and inexpensive procedures, and by persons who, generally, are familiar therewith. Such internal remedies are designed not only to promote the settlement of grievances but also to promote more harmonious relationships, and the courts look favor upon them.'
The respondents admit that there is no statute in this state giving the member of an unincorporated association the right to inspect its books and records. They do, however, contend that because an incorporated association partakes of some of the attributes of a partnership, and a partner has a right to have access to and inspect the books of the partnership, Corporations Code, § 15019, therefore, a member of an unincorporated association should have the same right. A complete answer to such contention is made in the cases cited by respondent. In Deeney v. Hotel & Office Employees' Union, etc., 57 Cal.App.Supp.2d 1023, 1026-1027, 134 P.2d 328, 330, the court said:
'* * * labor unions not being organized to carry on a business for profit do not constitute partnerships. Civ.Code, section 2400. Also see Brower v. Crimmins, 67 Misc. 68, 121 N.Y.S. 648.
'A contention somewhat similar to the one here made by defendants was advanced in the comparatively recent New York case of People v. Herbert, 162 Misc. 817, 295 N.Y.S. 251, 253. The defendants in that case had been indicated for the embezzlement of funds of a certain union. They set up the defense that they were not subject to prosecution by reason of the fact that the union was a partnership and that they, being members of that partnership, had title to the funds of the union jointly with all of the members. The court held that the contention was unsound. Said the court:
"It may be conceded that partnerships and labor unions have some characteristics in common. Thus, they are both unincorporated associations; and their members have a reculiarly distinctive form of joint title to their respective property, although in neither case is the title that of joint tenants or of tenants in common.
"But there are at the same time certain important differences between them. The purpose of a partnership is essentially to enable its members, as principals, to conduct a lawful business, trade, or profession. Such business, trade, or profession is to be carried on for the pecuniary gain of the partners. No one may become a partner without the consent of all the partners. In our state, this rule is a statutory one, for the Partnership Law, § 40, subd. 7, provides that: 'No person can become a member of a partnership without the consent of all the partners.'
"This principle of personal selection of one's partners is substantially the doctrine of delectus personarum. Sugarman, Law of Partnership, § 22. The number of members in a partnership is invariably small.
"On the other hand, a labor union is a combination of working men formed, not for the conduct of a lawful business, trade or profession for the pecuniary gain of its members; but for the purpose of securing, by united action, the most favorable wages and conditions of labor, and of otherwise improving their economic and social status. * * * It is well known that the membership of labor unions in many instances runs into the thousands; their members are widely scattered and have not the facilities and opportunities for daily collaboration which partners have. Furthermore, the principle of personal selection which is an indispensable one in the case of a partnership does not apply to a labor union, for it is not required that one may become a member thereof only with the consent of all the other members."
In 5 Cal.Jur.2d 499, in the article on 'Associations and Clubs', there is language appropriate to the point, where it is said:
'In the case of unincorporated nonprofit associations the statute provides that the members are not personally liable on certain types of contracts. These are debts or liabilities contracted or incurred by the association in the acquisition of land or leases or the purchase, leasing, designing, planning, architectural supervision, erection, construction, repair, or furnishing of buildings or other structures, to be used for the purpose of the organization. (Corp.Code Sec. 21100.) However, the members may assume a personal liability, by a written contract, note, or memorandum which specifically identifies the contract assumed and is signed by the assuming party or by his agent. (Corp.Code Sec. 21101.)
'The rule is declared by statute that no presumption or inference exists that a member of a nonprofit association had consented or agreed to the incurring of any obligation by the association, from the fact of joining or being a member of the association or signing its bylaws. (Corp.Code Sec. 21102.)'
And on page 493 (5 Cal.Jur.2d) it is said:
'In any case, the property of an association is in fact the property of its members, owned beneficially by them in equal shares and devoted to their common use. The interest of each member is subject to the right of the trustees, governing committee, or other board of control, to make such use or disposition of the property as the laws of the organization provide, and the members have no severable or individual interest therein.'
Here there is no showing whatsoever that as a member of the appellant Union, respondents are personally liable to anyone upon any contract or otherwise.
Respondents would have the court apply the rules of section 3003 of the Corporations Code, which has to do with corporations, to unincorporated associations. That section makes no mention of unincorporated associations and we have no doubt that if the Legislature had intended to include such groups under the rules therein set forth, it would have said so.
For the reasons therein set forth we are of the opinion that the writ of mandate should not lie under the facts and circumstances as are present in this case.
The judgment is reversed and the cause remanded with directions to the court below to deny the writ of mandate prayed for.
WHITE, P. J., and DORAN, J., concur. --------------- * Opinion vacated 313 P.2d 857. 1 Article XX, Sec. 20. 'Obligation to Exhaust Remedies. Every member or affiliate of the International Union feeling aggrieved by any action taken or failure to act by the International Union, its officers, or any subordinate affiliate of the International Union, or the officers or members thereof, with respect to any matter or thing relating to or affecting the affairs of such International Union or affiliate or with respect to the trial of charges or appeals therefrom, shall be required to exhaust all remedies of appeals and protest permitted such member or affiliate under the terms of this Constitution before resorting to any court or other tribunal.' Article XX, Sec. 12. '* * * Decisions of the General President may be appealed to the General Executive Board, and Decisions of the General Executive Board may be appealed to the Convention.' Article XX, Sec. 13. '* * * A member shall be deemed to have exhausted his remedies of appeal, in accordance with the requirements of Section 20 hereof, following an appeal to the General Executive Board.'