text:
    HENRY BLEDSOE, Appellant, v. LEWIS M. STALLARD.
    Division Two,
    May 20, 1913.
    1. DUE PROCESS OF LAW: Notice: By Publication: Public Road. The two public notices required to be given by publication to land-owners whose lands may be damaged by a change in the grade of a public road, required by the Act of 1903, Laws 1903, p. 148, if given in the form and for the length of time designated therein, constitute due process of law, and the statute is not violative of the provisions for due process of law of either the State or'Federal Constitution.
    2. DAMAGES TO ABUTTING PROPERTY: Rule: Uncertain Statute: Constitutional. The just compensation required by the Constitution to be paid to land-owners whose property is damaged for a public use is the actual damage to such property, less the peculiar benefits which may accrue from the public use to which it is subjected, which benefits must be special to the property damaged and not common to other lands in the neighborhood; and that rule the General Assembly cannot vary, for it is the rule fixed by judicial construction of the Constitution. But where some of the language of the statute, such as the statute of 1903 providing for the assessments of damages and benefits to abutting farm land caused by changing the grade of a public road, may be reasonably construed to mean that benefits common to other land should be considered in fixing the amount of damages to be assessed, but it also contains other words which fairly imply that the -damages shall be the “just compensation” provided by the Constitution, the courts, following the settled law that a statute is not to be held unconstitutional unless it contravenes the organic law in such manner as to leave no doubt of its unconstitutionality, will not hold the statute invalid; but trial courts, in submitting to juries or commissioners the issue of damages, should keep in mind the measure of damages fixed by the Constitution, regardless of the phraseology of the statute under which the proceeding is brought.
    3. -: Public Road: Transferred to Circuit Court. The Act of 1903, Laws 1903, p. 148, providing for the assessment of damages to abutting land caused by a change of grade in a public road, is not unconstitutional because it provides for the institution in the county court of the proceeding to assess damages and then the transfer of the same.to the circuit court for determination. That procedure does not deprive the land-owner of his day in court or tend to prevent him from obtaining a fair trial, or otherwise deprive him of his rights.
    4. -: -: Power of County Court to Set Aside Award. Whether or not section 12 of the Act of 1903, authorizing the county court to set aside the award of damages fixed by the circuit court, is constitutional, will not be decided, where the county court has not attempted to disturb the award made by the circuit court, and the question is not in the case.
    5. -: Injunction Before Statute’s Enactment: Eminent Domain. An injunction against the county and certain officers thereof obtained before the enactment of the Act of 1903 is no bar to future attempts to lower the grade of the public road in accordance -with that statute. The State’s power to take or damage an individual’s property for a public use when necessary, cannot be forestalled by a prior injunction.
    6. RES ADJUDICATA: Errors in Instructions to Commissioners: Former Appeal. After the proceeding to lower the grade of a public road along plaintiff’s land had proceeded to judgment, resulting in awarding him damages, and he had appealed, and the appeal had been dismissed because not timely taken, he brought this injunction against the highway engineer to restrain him from lowering the grade of the road. Held, that he cannot now be heard to contend that the trial court erred in its instructions to the commissioners, appointed in the former proceeding, regarding their duties in assessing plaintiff’s damages, and in admitting improper evidence in that proceeding. Upon the dismissal of his appeal all errors in the former proceeding, if any there were, became a sealed book.
    7. OPENING PUBLIC ROAD: Mistake in Advertisement for Contract: Injunction. .A mistake made by the highway engineer in advertising the contract to grade the public road, according to the decree entered by the circuit court ordering the grading to be done, cannot afford a basis for enjoining him from doing the work. Such a mistake might concern the county, but it is not an error which the owner of land along the part of the road to be graded can contest by injunction.
    Appeal from Buchanan Circuit Court. — Hon. Lucian J. Eastin, Judge.
    Affirmed.

      James W. Boyd for appellant.
    (1) Private property cannot he taken or damaged for public use, without a literal compliance with the State Constitution, and all statutory requirements. Leslie v. St. Louis, 47 Mo. 474; Ells v. Railroad, 51 Mo. 200; Anderson v. Pemberton, 89 Mo. 61; Williams v. Kirby, 169 Mo. 628. (2) The county court never had any jurisdiction to make any order coneerning the grading of Bledsoe Hill; 1, unless it complied with the requirements of the Act of March' 26, 1903; 2, even had it complied with the requirements of said act it had been permanently enjoined from • making any order in reference to the grading of said Bledsoe Hill. The temporary writ which was then made perpetual and absolute was to the effect that the defendants, be, and each of them are, enjoined and restrained from grading said road where said road runs on, along and adjoining plaintiff’s premises until further order of said court. (3) There is no claim made by the respondent, nor can there be any made, that said county court on February 26, 1907, made any order which complied with said section 1 of said act. The alleged order of said date does not pretend to fix any time or any extent or any dimensions. In order that the connty conrt might assume jurisdiction, if we are to go "by the statute, it is imperative upon it to fix the time, because the said section says that the conrt may make an order requiring a public highway to he graded at such time and to such extent as shall he provided hy such order entered of record. No time was ever fixed. The connty conrt had no right to make this order unless it had the right to repeal the said section. It could not-acquire jurisdiction hy ignoring the requirements of this section and it never did acquire jurisdiction because it did not comply with this section, or any part of this Act of March 26, 1903. Neither the circuit court, nor any other court could obtain any jurisdiction in regard to the attempt to grade Bledsoe Hill unless the county court in the first instance complied with the first section of said act. After its failure so to comply with the first section of said act, the connty court had no jurisdiction, and no other court could have jurisdiction. (4) The said Act of March 26, 1903, was unconstitutional and never had any force or effect in this State. Constitution, art. 2, sec. 30, and art. 6, secs. 22 and 36; Hulett v. Railroad, 145 Mo. 25; State ex inf. v. Loan & Investment Assn., 142 Mo. 325; State ex inf. v. Kramer, 150 Mo. 89; Turner v. Gregory, 151 Mo. 105; In re Bledsoe Hill, 200 Mo. 630. (a) It undertakes to damage private property for public use without due process of law. The order of the county court which is intended to give the circuit court jurisdiction, was made without any notice; and no notice is by the act required to be served on the party whose land is to he damaged, (h) The act attempts to confer jurisdiction on the circuit court to try the case, and compels it, if the report of the commissioners is confirmed, to enter judgment against the county; and gives the county the right of appeal from this final judgment. It then undertakes to give the county court the right to rescind the order — that is, to set aside the final judgment of the circuit court. Secs. 3, 9, 11 and 12. The Legislature has no power to authorize the county court to set aside a final judgment of the circuit court. The authority of the circuit court is fixed by the Constitution, art. 6, secs. 22-36. (c) This act fails to provide for any notice to the parties interested as to when and where they may submit proof to the commissioners. To proceed without notice, or to pass a law without a provision as to how or when a notice may be given, is to violate rights guaranteed by our Constitution, (d) The Constitution provides that private property shall not be taken for public use without “just compensation.” “Just compensation” is not “compensation abated by the benefits common to the lands in the general community.” Any abatement must arise only from benefits peculiar to the land damaged. Railroad v. Baker, 102 Mo. 553; Bennett v. Woody, 137 Mo. 377; Railroad v. Knapp-Stout & Co., 160 Mo. 396-; St. Joseph v. Crowther, 142 Mo. 155. (5) The contention here is that the county court never had jurisdiction, the circuit court never had jurisdiction, no notice was ever given for the letting of the said contract to grade Bledsoe Hill, no contract was ever let legally for that purpose, no bond was ever given for grading Bledsoe Hill, and that the pretended effort to grade Bledsoe Hill was without authority of law, null and void and vicious as to said Henry Bledsoe.

      C. C. Ferrell for respondent; Duncan & Utz of counsel.
    The record in the cause in which appellant’s damages for the proposed grading were assessed, shows that appellant had his day in court and contested every point he has sought to raise in this proceeding. That being true, the law is that the judgment rendered by the court having jurisdiction of £be parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, or binding effect, by the parties or privies in any collateral action or proceeding. 23 Oyc. 1055. This rule applies to collateral impeachment of judgments, decrees or orders made by courts of competent jurisdiction in all kinds of judicial proceedings, such as decrees in equity, judgment or decrees in rem, eminent domain proceedings, etc. Lovitt v. Russell, 138 Mo. 474; Ellis v. Railroad, 51 Mo. 203; Sedalia v. Railroad, 17 Mo. App. 105.
   BROWN, P. J.

Injunction to restrain defendant from lowering the grade of a public road. Prom a final judgment for defendant, plaintiff appeals.

The plaintiff owns some farm lands in Buchanan county, Missouri, adjoining what is known as the Union Public Road. Plaintiff’s dwelling house and other buildings are situated on a hill and he contends that if defendant is permitted to lower the grade of said road on said hill in front of plaintiff’s buildings he will be irreparably injured.

In the year 1902 the proper authorities of Buchanan county undertook to lower the grade of the aforesaid public road in front of plaintiff’s property, whereupon he instituted an action against Buchanan connty and the judges of the county court and surveyor of said county, in which action he obtained a final judgment restraining the defendants in that action from lowering the grade of said public road in front of his property. This injunction seems to have been granted because, at that time, there was no statute in Missouri authorizing the taxation of consequential damages in favor of persons who might be injured by changing the grades of public roads in front of their lands. In the year 1903 the General Assembly enacted a law which provided a scheme for assessing against the counties the damages which may accrue to land-owners from changes in the grades of public roads. [Laws 1903, p. 148.]

After the enactment of this law, to-wit, on February 26, 1907, the county court of Buchanan county caused a proceeding to be instituted to assess the damages which would accrue to plaintiff by lowering the grade of said Union Public Road in front of his lands. Defendant appeared and, by appropriate pleadings and proceedings, resisted that action, alleging, among other defenses, that the Act of 1903 was unconstitutional. That case proceeded to final judgment and resulted in the damage to plaintiff Bledsoe’s land being assessed at $500, from which judgment he (Bledsoe) attempted to appeal to this court, but his appeal was not taken within the time required by law and was dismissed, 222 Mo.. 604, thereby leaving the judgment of the circuit court in full force.

The appellant (Bledsoe) refused to accept the $500 damages awarded to him, and on the 29th day of November, 1909, the defendant (Stallard), acting as highway engineer of Buchanan county, having advertised to let a contract for lowering the grade of the public road in front of plaintiff’s property, he brought the present action of injunction, the chief object of which is to test the constitutionality of the Act of 1903, under which the damages were assessed.

In the present action the plaintiff (Bledsoe) challenges the constitutionality of the Act of 1903 on the same grounds which he unsuccessfully interposed in the proceeding to assess his damages, to-wit:

(1) That the Act of 1903 deprives plaintiff of his property without due process of law, contrary to section 30, article 2, of the Constitution of Missouri, and section 1 of the Fourteenth Amendment to the Constitution of the United States,

(2) That is violates section 21 of article 2 of the Constitution of Missouri, in that it prescribes a method whereby private property may be damaged without just compensation.

(3) That it violates sections 22 and 36 of article 6 of the Constitution of Missouri, in that it provides for instituting the proceeding to assess damages in the county court and then transferring the same to the circuit court.

(4) That it further violates sections' 22 and 36 of article 6 of the Constitution of Missouri, in that it authorizes the county court to set aside the judgments of the circuit court in cases where the award of damages is unsatisfactory to the county court.

Eespondent insists that all these constitutional questions having been interposed by plaintiff (Bledsoe) in the proceeding to lower the grade of the public road and assess the damages which will accrue to plaintiff from such change of grade, the judgment in said former proceeding is res adjudicata in this action.

Passing over, without deciding, this issue of res adjudicata, we will attend to the constitutional questions which plaintiff sought to raise in the former proceeding. If the law be constitutional, then the former judgment must needs be a complete defense to the present action.

I. If the Act of 1903 provides for assessing the damages which property-owners will sustain by changing the grade of public roads in front of their property without giving them notice and an opportunity to be heard in their own behalf, then said act is clearly in violation of the due procees clause of both the State and Federal Constitutions.

Section 2 of the Act of 1903 requires the county court, after making the order to grade a public road, to give notice of such proposed grading for four successive weeks by publication in some newspaper printed and published in the county.

Section 3 provides that after the publication of said notice the county clerk shall file, a certified copy of the order and proof of publication thereof with the circuit court.

Section 5 of said act provides that after the receipt of said copy of the order of the county court and proof of due publication thereof the circuit court, the clerk or judge thereof shall cause additional notice fixing the “day and place” where a hearing will be given to ascertain the damages which will accrue from such grading, which order of notice shall be directed “To all whom it may concern, without naming them,” and be published once a week for four successive weeks, in some newspaper published in the county, the last insertion to be not more than one week before the day fixed for the hearing. In the meantime the county surveyor is required to prepare and file a correct description of the several tracts of private property abutting on the public road, with a profile of the public road proposed to be graded, which profile shall show the natural surface of said public road and the extent of the grading proposed to be done.

No authority is cited to indicate why the two notices provided for by this law are not in all respects sufficient to inform interested land-owners of contemplated changes of grade in public roads, and of the action to ascertain the damages which will accrue to them from such changes of grade in said roads.

Personal service is not necessary in proceedings to condemn land, or in proceedings which will place a burden of taxation thereon, and we are unable to understand why the publications required by the law of 1903 are not entirely sufficient to inform a landowner of the proceeding contemplated by that law.

In the recent case of State ex rel. Coleman v. Blair, 245 Mo. 680, this court, sitting in Banc, had occasion to review the due process of law clause of both our State and Federal Constitutions; and in that case we held that publication of notice of a proceeding to assess benefits against lands for drainage purposes published four weeks in a newspaper was due process of law within the purview of both the Constitution of Missouri and the Constitution of the United States.

To the same effect is Huling v. Kaw Valley Railway & Improvement Co., 130 U. S. 559, and Leigh v. Green, 193 U. S. 79. We have no hesitancy in saying that the two notices required to be published under the Act of 1903, supra, when sufficient in form to notify the land-owners of the particular public road which the county court is attempting to grade or cause to be graded, are due process of law to such land-owners.

II. The plaintiff strenuously insists that the aforesaid Act of 1903 violates section 21 of article 2 of the Constitution of Missouri, in that it provides a method whereby private property may be damaged without just compensation.

Section 7 of said act contains the following provisions relating to the measure of damages which landowners should receive for changing the grade of public roads in front of their property:

“Sec. 7. The commissioners provided for in the preceding section shall be sworn to ascertain and report the actual damages or just compensation to be paid in each case separately under such instructions as shall, after hearing the parties, be given them by the judge or court. Parties interested may .submit proof to the commissioners, and said commissioners shall examine, personally, each piece of property described on such map or plat, and all property claimed to be damaged by such, proposed grading. Tbe commissioners shall ascertain and state in their report or verdict the amount of actual damages to each piece of private property that will be damaged by reason of the proposed grading, having due regard to, and making just allowance for, all benefits to such piece of property, from such grading, and when the damages to any piece of properly do not exceed the benefits thereto from the proposed gradmg, the commissioners shall not report any allowance of damage to such piece.”

It has long been the rule of this court that the just compensation required by the Constitution to be paid to land-owers whose property is damaged for public use is the actual damage to such property, less the benefits which may accrue from the public use to which it is subjected, which benefits must be special to the property damaged and not common to other lands in that neighborhood. [Smith v. City of St. Joseph, 122 Mo. 643; Cole v. St. Louis, 132 Mo. 633.] The foregoing is the rule for measuring damages fixed by a judicial construction of the Constitution of Missouri, and of course, the General Assembly cannot change that rule by statute, unless the Constitution be first amended.

If the Act of 1903 forbids the payment of j'ust compensation for private property damaged for public use, then it is, of course, unconstitutional'. Some of the language of said act, if standing alone, might reasonably be construed to mean that benefits common to other lands should be considered by the board of commissioners in fixing the amount of damages to be assessed, but it will be observed that the act also uses the same language as the Constitution, i. e., “just compensation,” so that when all of said section, supra, is read together, there is some doubt as to just what classes of benefits said law intended should be taken into consideration. If it means the just compensation prescribed by tbe Constitution, then tbe act is valid.

There is no better settled law in our State than the rule that courts will not hold a statute to be unconstitutional unless it contravenes the organic law in such a manner as to leave no doubt of its unconstitutionality. [State v. Layton, 160 Mo. 474; State ex rel. v. McIntosh, 205 Mo. 589; State ex rel. v. Fort, 210 Mo. 512, l. c. 526.]

It is the duty of the courts to read the Constitution into all statutes, and if this may be done without doing violence to the word or spirit of a statute, then such statute is not unconstitutional.

The law in judgment contains words which fairly imply that the damages for changing the grade of public roads shall be that “just compensation” prescribed by the Constitution. We, therefore, hold that it does not, in respect to such measure of damages, contravene the Constitution. Trial courts in submitting to juries or commissioners the issue of damages for injury to or the taking of private property for public use should always keep in mind the measure of damages fixed by the Constitution, and the rule announced by this court for ascertaining same, regardless of the phraseology of the statute under which the suit or other proceeding is brought.

III. It is further insisted that the Act of 1903 violates sections 22 and 36 of article 6 of the Missouri Constitution, in that it provides for initiating the proceeding to change the grade of public roads in the county courts, and then transferring said proceeding to the circuit court for final hearing and determination.

The matter of establishing and maintaining public roads in those counties not under township organization is, by our statutes, usually confided to county courts. Pursuant to the general policy of our statutes on that subject the Act of 1903 authorizes county courts to institute proceedings to change the grade of public roads, and, having done so, in this case the county court of Buchanan county became, in a certain sense, the plaintiff in such proceeding.

There is no doubt that the General Assembly, for this reason, deemed it prudent to have such action finally heard and- determined by the circuit court, which last named court would be less likely to have, any personal interest in the result.

The procedure complained of does not deprive plaintiff of his day in court or tend to prevent him from obtaining a fair trial, or otherwise impair his rights. Therefore, this contention is ruled against him.

IV. Plaintiff asserts that the Act of 1903 further violates said sections 22 and 36 of article 6 of the Constitution of Missouri, in that section 12 of said act empowers county courts to set aside the award of damages fixed by the circuit court.

This issue is not in this case, nor did it arise in the former case in which $500 was awarded .to this plaintiff for injury to his lands by changing the grade of the Union Public Road. The county court has not attempted to disturb the award of damages to plaintiff, but, on the other hand, has tendered him his damages. It will be time enough to determine the constitutionality of said section 12, supra, when a case arises wherein its validity is properly called into question. However, the writer, speaking for himself, cannot understand how the alleged invalidity of section 12 of the Act of 1903 worfid impair the other provisions of said act, even if said section be unconstitutional, which we do not decide.

V. A further contention of plaintiff is that the injunction which he obtained against Buchanan countv and certain officers thereof before the law °f 1903 was enacted, is a complete bar to all attempts to lower the grade of said road. This contention is wholly nnsonnd., The right to take or injure private property for public use is never transferred by the sovereign. In this country the State being the sovereign that right is reserved to the State. It is impossible for any individual so to barricade his title by injunction or otherwise as to fence out the State from taking or injuring his property when it becomes necessary to do so for a public use. [Tiedeman on Real Property (3 Ed.), sec. 525; 3 Washburn on Real Property (6 Ed.), sec. 1875.]

VI. It is further contended that in the former proceeding to lower the grade of said Union Public Road, and to assess the damages of ]3le(f[soe therefor, the trial court erred in its instructions to the commissioners regarding their duties in ascertaining plaintiff’s damages and in admitting improper evidence on the part of the plaintiff in that action.

All such matters were settled by the final judgment pleaded by the defendant in his answer in this cause. If plaintiff Bledsoe had perfected his appeal in the former case within the time required by law, said alleged errors could have been reviewed on that appeal, but upon' the dismissal of the appeal, errors, if any, accruing during the trial of that action became a sealed book which cannot be opened in this action.

VII. A still further insistence relied upon by plaintiff is the alleged fact that defendant as such highway engineer has made a mistake in advertising the contract to grade the public road. If there be any such mistake in the notice it can afford no basis for enjoining defendant from lowering the grade of said road according to the decree entered by the circuit court.

The matter of letting the contract for the grading is not embraced within the provisions of the Act of 1903. The defendant has the right to perform the physical work of lowering the grade of said public road in any lawful manner that he may desire. If defendant enters into an invalid contract with some one to do the grading, that fact might relieve the county of Buchanan from liability to pay for the work, but it is not an error which plaintiff can contest in this action.

The judgment of the trial court denying plaintiff’s demand for a permanent injunction in this action is correct and the same is. affirmed.

Faris and Walker, JJ., concur.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    E. O. MOFFATT et al. v. BOARD OF TRADE OF KANSAS CITY et al., Appellants.
    Division Two,
    May 20, 1913.
    1. BOARD OF TRADE: Trial and Expulsion of Members: Resort to Courts: Legal Rights in Original Controversy. The Supreme Court, upon an appeal from an injunction restraining a board of trade from proceeding to expel certain members because, it is alleged, they refused to submit a controversy to arbitration as directed by its constitution, is not concerned with the legal rights of the parties involved in the original controversy. That controversy merely evidenced the existence of a dispute within the purview of the constitution.
    2. -- — :--: Constitutional Powers of Directors: Ex Parte Action. While plaintiffs in becoming members of the Board of Trade agreed to observe its constitution, rules and bylaws, and agreed to be subject to fine, suspension or expulsion in case they violated that agreement, yet they.did not agree that the board of directors could exercise powers other than those conferred by the constitution, and while that board might try and punish members for failure to meet and discharge unquestioned obligations, it could not, ex parte, settle business controversies by resolution and on pain of expulsion exact compliance with such mandates.

      3. -: -: -: Estoppel. Members of a board of trade are not estopped to stand upon the express provisions of tbeir agreement, as set out in the constitution, rules and-bylaws of the board, by the fact that they have induced others in different matters to yield obedience to unauthorized orders of the board of directors.
    4. --: -: -: Circulating Slanderous Reports. Allegations in'a pleading in a suit in court, to-wit, that the board of directors of a board of trade has refused plaintiffs the right to arbitrate, that the members of the board were interested ’ in like controversies and therefore were attempting to pass on their own cases, and that the board was acting outside its constitutional authority, do not fall within the constitutional prohibition against “circulating false or slanderous reports relative to the business affairs of other members or relative to the officers, appointees and committees of the association.”
    5. -: -:--: Protecting Member’s Property Rights. The property rights incident to membership in the Kansas City Board of Trade entitle a member to resist expulsion and to resort to the courts to enforce his rights to retain such membership in case the tribunals within the board attempt to oust him in disregard of the constitution — and that is so despite a covenant in the constitution not to bring suit against an officer of the board on account of any transaction therein.
    6. -: -: Resort to Courts: Injunction: Prematurely Sought. The board of directors of the Kansas City Board of Trade has power to try members against whom complaints have been lodged, and, in case of conviction, has discretion to fine, suspend or expel the offender. It is also within the discretion of the board of directors whether a member shall be punished for the misconduct of the corporation which he represents. Therefore, where the complaints were filed before the board against the plaintiffs, for' the failure of plaintiffs’ corporation to pay for a car of grain, and the plaintiffs, before trial before the directors, applied to the courts for an injunction to prevent their expulsion, it is held that plaintiffs have no right to injunction, because their application is premature.
    Appeal from Jackson Circuit Court. — Hon. William B. Teasdale, Judge.
    Reversed.

      Kimbrough Stone and Frank Hagerman for appellants.
    (1) The nature of an organization like the Board of Trade. Tompkins v. Saffrey, L. R. 3 App. Cas. 213; Law & Customs of the Stock Exchange, by Melsheimer & Gardner (3 Ed. London, 1891), 98,102; Clark v. Foss, 7 Biss. 547, 555; Bisbee and Simons Produce Exchanges, Pref. 6; White v. Brownell, 2 Daly, 329; Leech v. Harris, 2 Brewst. (Pa.) 571; In re Haebler, 149 N. Y. 414; American Com. Co. v. Live Stock Exchange, 143 111. 226; Dos Passon on Stock Exchange, 15; 23 Am. & Eng. Eney. Law, 749, 751; Seymour v. Bridge, 14 Q. B. D. 465; Belton v. Hatch, 109 N. Y. 593; Telegraph Co. v. Smith, 47 Hun, 505; Board of Trade v. Nelson, 162 111. 431; People v. Commercial Assn., 18 Abb. Pr. 271; Vaughn v. Herndon, 91 Tenn. 64; People v. Board of Trade, 80 111. .134; Grain & Stock Exchange v, Board of Trade, 15 Fed. 847; Evans v. Chamber of Commerce, 86 Minn. 448. (2) There is a vast difference between the rights of a member of a voluntary, unincorporated institution, and those of a shareholder of a corporation. 1 Thompson on Corporations, sec. 846; Bacon on Benefit Societies, sec. 89; Niblack on Benefit Societies, secs. 30, 22, 23, 73, 74, 75; Kehenbeck v. Logemam, 10 Daly, 447; Ellerbe v. Faust, 119 Mo. 653; White v. Brownell, 2 Daly, 358; Lewis v. Wilson, 121 N. Y. 285; State v. Merchants’ Exchange, 2 Mo. App. 96; State v. Odd Fellows, 8 Mo. App. 154; People v. Board of Trade, 80 111. 136; Albers v. Merchants’ Exchange, 138 Mo. 140; Borgraefe v. Supreme Lodge, 22 Mo. App. 142; Warren V. Merchants’ Exchange, 52 Mo. App. 167; Levy v. Magnolia Lodge, 110 Cal. 297; Greer, Mills & Co. v. Stoller, 77 Fed. 1. (3) While there may be provisions that will be condemned as by-laws, yet, where the provision is part of the original contract, the rule as to the reasonableness or unreasonableness as a by-law cuts no figure. Niblack on Benefit Societies, sec. 23; Bacon on Benefit Societies, sec. 87; Society v. Vandyke, 2 Wharton, 309; Levy v. Magnolia Lodge, 110 Cal. 297; Albers v. Merchants’ Exchange, 138 Mo. 140. (4) There is power to expel, under section 1, article 8 of the constitution, any member who refuses to promptly and faithfully fulfill his business obligations, and who refuses to equitably and satisfactorily adjust and settle the same. Parmer v. Board of Trade, 78 Mo. App. 557; Dickinson v. Chamber of Commerce, 29 Wis. 45; People v. Board of Trade, 45 111. 112; Albers v. Merchants’ Exchange, 138 Mo. 140; White v. Brownell, 2 Daly, 358; Lewis v. Wilson,' 121 N. Y. 284; Payne v. Crawford, 97 Ala. 604; Creer, Mills & Co. v. Stoller, 77 Fed. 1; In re Haehler, 149 N. Y. 414. (5) There was the right to try respondents for dishonest practices and conduct detrimental to the best interests of the association. Parmer v. Board of Trade, 78 Mo. App. 557; Cladish v. Bridge-ford, 113 Mo. App. 726; Albers v. Merchants’ Exchange, 138 Mo. 140; State ex rel. v. St. Louis Med. Soc., 91 Mo. App. 76; Brandenburger v. Jefferson Club, 88 Mo. App. 148; Lawson v. Hewel, 118 Cal. 613; Niblack Benefit Societies, sec. , 75; People v. Board of Trade, 80 111. 134; Baxter ,v. Board of Trade, 83 111. 146; Sturgis v. Board of Trade, 86 111. 441; Pitcher v. Board of Trade, 121 111. 412; Board of Trade v. Nelson, 162 111. 431; Creene v. Board of Trade, 63 111. App. 446; In re Haebler, 149 N. Y. 414; Osceola Tribe v. Schmidt, 57 Md. 106; Cregg v. Medical Society, 111 Mass. 193; Board of Trade v. Weare, 105 111. App. 299. (6) In any event, no injunction should have been issued before the trial. (7) The respondents have ceased to be members, by reason of having relinquished any right to complain, by virtue of section 11, article 5, of the constitution. Crosvenor v. Dnited Societies, 118 Mass. 78; 2 Parsons on Contracts (8 Ed.), secs. 713, 417; Pierce v. Parker, 4 Met. 80; Puller v. Railroad, 67 Md. 433; Donald v. Railroad, 93 Iowa, 284. (8) There was error in excluding the record of the Board of Directors of October 13, 1906. Parmer v. Board of Trade, 78 Mo. App. 557. (9) Vice of the decree in enjoining a trial until the claim against respondents was arbitrated. Bigelow on Estoppel (5 Ed.), 673, 689-690, 693-694; 11 Am. & Eng. Ency. Law (2 Ed.), 446; Railroad v. Howard, 13 How. 307; Railroad v. McCarthy, 96 U. S. 258; Daniels v. Tearney, 102 U. S. 415; Davis v. Walker, 156 U. S. 680; Brooks v. Laurent, 98 Fed. 647, 39 C. O. A. 209.

      Harhless, Crysler & Histed. for respondents.
    (1) A voluntary association like a Board of Trade cannot transcend the limits of natural justice, the public policy of the State, or violate its own rules or deal capriciously with its members by fraudulent devices and pretenses. The rules and regulations constitute a contract between the members respectively of the board, and the board cannot over-ride, violate, or usurp its own rules in order to accomplish some ulterior motive, or be itself a party to the violation of its own rules. Hoeffner v. Grand Lodge, 41 Mo. App. 359; Mulroy v. Supreme Lodge, 28 Mo. App. 463. (2) The proceedings to expel a party from membership must be strictly pursued and the member cannot be expelled where the rules and regulations vest power in the Arbitration Committee to determine the dispute, until the committee decides, and the member refuses to thereafter comply with the committee’s award and the board cannot arbitrarily usurp that power themselves. The rules and regulations having provided that all disputes of a mercantile or commercial character must be submitted to arbitration, is an exclusion of all other power or body to determine. (3) The board cannot put an end to membership merely at the caprice of the directory. Parmer v. Board of Trade, 78 Mo. App. 564,
   BLAIR, C.

This appeal is prosecuted from a decree of the circuit court of Jackson county making perpetual an injunction issued to restrain defendants, as officers and directors of the Board of Trade of Kansas City, from further pursuing proceedings alleged to have been instituted to expel plaintiffs from membership on that board.

The case was originally appealed to this court, and subsequently transferred on jurisdictional grounds to the Kansas City Court of Appeals, where it was heard and the judgment ordered affirmed in an opinion by Judge Johnson in which.Judge Broaddus concurred and from which Judge Ellison dissented stating he entertained a different view of the facts and deemed the opinion in conflict with certain decisions of this court. The case was then transferred here, in due time docketed,, and, after several continuances by agreement of the parties, the record is submitted for judgment. Plaintiffs and defendants are members of the Board of Trade of Kansas City (hereafter referred to as the Board of Trade) a voluntary association whose declared objects are: “To maintain a board of trade; to promote uniformity in the customs and usages of merchants; to inculcate principles of justice and equity in business; to facilitate the speedy adjustment of business disputes; to inspire confidence in the business methods and integrity of the parties hereto; to collect and disseminate valuable commercial and economic information, and generally secure to its members the benefits of co-operation in the furtherance of their legitimate pursuits, and to promote the general'welfare of Kansas City.”

Plaintiffs were officers and directors of the Moffatt Commission Company (hereafter referred to as the Moffatt Co.), and at all times herein mentioned there was in force a provision of the constitution of the Board of Trade to the effect that all provisions of the by-laws and constitution relative to arbitration, settlement and adjustment of claim should “apply to firms and corporations, so that each member of the Board of Trade, who is a member of a co-partnership, or officer, director or stockholder of a corporation shall be required to see to it that the same proceedings shall be had as to the debts or claims of such partnerships or corporation as is required as to his own debts or claims, and his membership shall, in the discretion of the directors, be subject to like fines,' suspensions and penalties for the default of his firm or corporation as it would be for his individual acts. ’ ’

The proceedings to expel plaintiffs were initiated by Goffe, Lucas & Carkener, partners and members of the Board of Trade, who claimed plaintiffs owed them for a car of grain destroyed by high water after, as they contended, delivery had been made. Plaintiffs denied all liability. The salé occurred, if at all, on May 29, and the car in question and some eight hundred others belonging to various owners, and similarly situated with respect to the title to the grain they contained, were caught in an extraordinary flood and all the grain in them destroyed.

On June 5 the board of directors of the Board of Trade adopted the following:

“Resolved that after mature consideration and after taking legal advice, it is the sense of this directory that on all sales of track grain and grain products, the title passed at the time the sale was made and the ticket passed.”

This was the exact question then in dispute between the Moffatt Co. and Goffe, Lucas & Carkener, plaintiffs maintaining the negative thereof.

On June 8, Goffe, Lucas & Carkener by letter requested the board of directors of the Board of Trade to take up the question of the Moffatt Company’s indebtedness to them and order payment if they were entitled to the money claimed. On the same date the directors took np this matter, and plaintiff Moffatt appeared and questioned the right of the board of directors to decide the controversy, and, further, declared he did not believe that the board of directors or an arbitration committee composed of Board of Trade members were competent to sit in cases arising from the destruction of property caused by the recent flood, stating that he doubted “if there is one member of either of these committees that is not interested” in some such case.

The board of directors, however, promptly took jurisdiction of the matter and ordered the Moffatt Company to pay. . This that company, through plaintiffs, refused to do. Of this refusal Goffe, Lucas & Carkener advised the board of directors and the latter issued a citation to plaintiff Moffatt to appear June 15 to answer the charge of violating section 1 of article 8, of the constitution of the Board of Trade. The hearing was continued to June 23 and on the 21st this suit was commenced. On July 2 a more formal complaint was filed by Goffe, Lucas & Carkener against each of the plaintiffs, charging each with (1) violating the board of directors’ order to pay Goffe, Lucas & Carkener for the car of grain, (2) failing to request a submission to arbitration and falsely alleging in the petition in this case that he had been denied the right to arbitrate and that the board was threatening to suspend or expel him, (3) utilizing .the resolution of June 5 to compel payment from others but refusing to abide by it himself, (4) procuring orders from the board requiring payment to them and then falsely alleging the board had no power to make such an order and (5) violating section 2 of article 5, of the constitution, etc., of the Board of Trade by filing this suit.

October 13, 1903, these complaints were amended so as to specify that by reason of the'several things charged plaintiffs had violated section 2 of article 5, sections 1 and 2 of article 8, and the amendment of December 2, 1901, to article 11 of the constitution, rules and regulations of the Board of Trade. Upon the filing of the first amended complaint against Moffatt the board of directors adopted the following-resolution :

“Whereas, written complaint (a copy of which is annexed to this resolution) has been this day filed against E. O. Moffatt.
“Therefore, be it resolved, that, in order to avoid any misunderstanding of the purpose of this body, the same shall be treated and considered as the complaint upon which the said Moffatt shall be tried and that he be cited, in accordance with the rules, to appear for trial as soon as it is ascertained that no injunction prevents this body from proceeding- to try him for the offenses charged, or if an injunction does so interfere then the trial shall take place as soon as notice can be served, after the injunction is modified or dissolved, it being the intention, while obeying any injunction, to respectfully insist to the courts that this body has the right to try Mr. Moffatt and determine whether he has violated the constitution, rules and regulations.”

A similar resolution applying to the complaint against Aylesworth was adopted at the same time, and apon the filing- of the second amended complaints in October the board of directors readopted these resolutions, making them apply to the complaints as amended.

On the folowing day the answer was filed.

The amendment of December 2, 1901, referred to in the complaint, related to the responsibility of members of the Board of Trade for the acts of firms and corporations with which they were connected and is set out, in substance, above.

Sections 1 and 2 of article 8 of the constitution, so far as pertinent, read as follows:

“Section 1. Every person admitted to the privileges of this association shall promptly and faithfully comply with and fulfil all business obligations into which he may enter, either with other members of the association or with other parties, and shall, equitably and satisfactorily, adjust and settle the same. He shall also submit all disputes of a financial, mercantile or commercial character, connected with or arising from any matter referred to in this constitution and the rules and regulations of this association, whether with other members of this association, or with other parties, when such other parties assent thereto, to the arbitration of the committees of arbitration and appeals, and promptly and faithfully perform the awards thereof; and he shall faithfully observe and obey all the rules and regulations of this association, whether adopted by the association or by the board of directors.
“Section 2. . . . Nor shall any member be guilty of making or circulating any false or slanderous reports relative to the business affairs of other members, or relative to the officers, appointees and committees of the association, or the general management of the market . . . .”

Section 2 of article 5 reads as follows:

“Whereas, in the past management of similar associations it has occurred that officers, directors and members of committees have been sued in damages because of acts done or omitted to be done by them officially, the result of which may be to deprive this association of the full and fearless services of competent and responsible parties, it is therefore covenanted and agreed by each and every person becoming or who may be admitted a member of this association as á consideration for being accorded such membership . . that he will not, directly or indirectly, in any manner or in any court or before any tribunal other than those provided by this association, make any complaint, claim or demand or institute any suit or other proceeding against any -person based upon or claimed to arise from any act done or omitted to be done, any vote cast, resolution passed or order made by such person while acting as an officer, director or committeeman of this association, or pursuant to any order, resolution, or direction of any officer, director or committeeman of this association. Each and every member of this association and every such non-member and each and every other person who may be hereafter accorded the privileges of membership, or any of. the privileges enumerated in this constitution, or in any rule or regulation of this association, or in any resolution, motion or other proceeding adopted or provided by this association or its directors, or by any officér or committeeman thereof, does, in consideration of the premises, covenant and obligate himself not to make any demand or claim any right of action against the members of this association or any one or more of them for any loss or injury sustained by him in the premises, or by reason of any action taken or act done in connection therewith, it being the intention to hereby release and discharge any and all such claims, demands and rights of action, without restriction, limitation or exception of any kind or character in any respect whatever. Should any person, whether member or non-member, nevertheless make any such claim or institute any such suit, each and all of the members hereof and each and every person hereafter admitted to membership, agrees and covenants to indemnify any member or other person, subjected to such claim or suit against any and all cost, damage or liability by reason of the premises, and to hold him harmless on account thereof. And the board of directors may enforce this agreement by assessment made, as to which assessment no action further than a resolution of said board shall be necessary. Should any present or future member fail to keep this agreement or to pay- any such assessment, he shall for that reason and by that act alone be deemed and taken by all persons and in all places to have resigned and surrendered his membership in this association, and all the privileges and immunities thereof or incident thereto, expressly including his interest in any property now or at any time hereafter belonging to or held for this association, or in which the same is interested.”

Other provisions of the constitution were to the effect that any member violating any of “these bylaws or rules or any regulations adopted by the board of directors, or the association, shall be censured, fined, suspended or expelled at the discretion of the board of directors, after a full and fair hearing of all the facts presented in the case. At the option of the board of directors he shall be deemed by such violation or breach to have surrendered and resigned his membership in this body, and all the privileges or property interests, if any, pertaining thereto and resulting therefrom. But before the board of directors shall enter upon the consideration of any such violation, a formal complaint shall be filed with the secretary at least two business days prior to the day on which the case is to be heard. Said complaint may be made either by a member or by a non-member, and shall specify the member complained against, and the offense with which he is charged and shall cite the by-law, rule or regulation which it is alleged has been violated.”

The relevant provisions of the constitution concerning arbitration were that the committee of arbitration (provided for) should hear and determine all disputes of a financial, mercantile or commercial character and that:—

“All disputes, differences or disagreements of a financial, mercantile or commercial character, of the character aforesaid, among members of this association, or between members and other parties, when such others assent thereto, must and are hereby agreed to be submitted to the committee of arbitration for adjustment. The board of directors shall have power to determine whether any given demand or counter-demand is a proper one for arbitration, and their conclusion in the premises shall be final and not reviewable by the association or in any court. Any member who shall commence an action at law against another member in regular standing (unless by agreement between them, or under section three of this article), for any such dispute, difference or disagreement, before he shall offer to arbitrate the same, and the arbitration has been refused, shall be liable to suspension or expulsion, as the directors may determine; but if arbitration shall have been proposed and refhsed, then an action or actions at law may be commenced, and the members failing or refusing to arbitrate may be suspended or expelled as the board of directors may determine; provided, that in any case either party may appear before the board of directors, and upon such notice to the other party, if any, as the board may direct, the directors may order that an arbitration shall not be required, and upon such determination suits may be commenced by eithei party. ...”
“Section 4. Any such member or other person desiring to submit a matter in controversy to the committee of arbitration, shall file with the secretary his complaint, stating therein the cause of action, and the demands claimed. In case the complainant is- a non-member, he shall also sign an agreement to abide by and comply with all the terms and provisions of this constitution, and all orders and .resolutions of the board of directors, and any committee of this association concerning the arbitration of said demand, and of any counter-demand which the defendant may present. A copy of such complaint shall be served by the secretary on the opposite party, and if the party complained against shall fail to make answer in writing to such complaint within two business days after service of copy thereof as aforesaid,. or if he shall refuse to sign the agreement hereinafter prescribed, he shall be deemed to have refused, and to have incurred the penalties of refusal to join in submission -to arbitration. . . . When, from absence or disqualification of regular members, either the committee of arbitration or appeals cannot be formed, the parties in controversy shall be allowed to fill vacancies with any member or members of this association willing to serve (not being of the other committee or the board of directors) on whom they may agree; or if such parties are unwilling to submit their case to the committee of arbitration, they may choose three or more members (willing to serve and not being of the committee of appeals or board of directors) whom they may agree upon; such agreement, in either case, to be communicated to the secretary in writing, signed by all the parties in controversy. A majority award or finding of committees thus formed shall be made under the same rules and shall have the same effect as if made by the regular committees, respectively.”

There were also provisions relating to sales of grain on track asserted by plaintiffs to be in conflict with the resolution passed by the board of directors June 5 and above set out.

Neither plaintiffs nor G-offe,. Lucas & Carkener had requested an arbitration of the dispute, between them and while the answer averred that Mr. Moffatt had “appeared before the board of directors and claimed that neither the board of directors nor any arbitration committee had power to consider or pass upon” that controversy there was no substantial evidence of- any refusal to arbitrate, the affidavits offered to show such refusal disclosing that Moffatt’s position was that the directors and members were probably disqualified by reason of being interested in controversies of like character. The conclusion of the affiants that Moffatt refused to submit to arbitration was drawn from this statement attributed to him.

The value of a membership on the Board of Trade was alleged and shown to be from $2500 to $3000 and each member also had an interest in a fund out of which the sum of $1000 was paid to the estate of each who died.

I. With the legal rights of the parties to the controversy which gave origin to the complaint filed with the board of directors we aré not concerned. The only importance that controversy has is that it evidenced the existence of a dispute which fell within the purview of the provisions of the constitution of the Board of Trade relating to the adjustment by arbitration of “disputes, differences and disagreements of a financial, mercantile or commercial character” between members.

No Retusal to Arbitrate. II. While plaintiffs in becoming members of the Board of Trade agreed to observe its constitution, rules and by-laws, and agreed to be subject suspension or expulsion in case they violated that agreement, yet they did not agree that the board of directors could exercise powers other than those conferred by the constitution, and while that board might try and punish members for failure to meet and discharge unquestioned obligations, it could not, ex parte, settle business controversies by resolution and on pain of expulsion exact compliance mandates. We agree with the learned Court of Appeals that in-case of a difference or disagreement “of a financial, mercantile or commercial character” between or among members of the Board of Trade the board of directors might, in a proper case, determine whether snch difference or disagreement was under the rules a proper subject for arbitration and, if so, and the complainant demanded arbitration, then a refusal of the other party to arbitrate would subject him to fine, suspension or expulsion; and we also agree that if the controversy was held by the board of directors not to be a proper subject for arbitration, then that decision did not invest the board of directors with power to decide the matter but the parties might resort to the courts. Such is the plain effect of the constitutional provisions above set forth. The resolution of June 5 amounted to nothing more than a gratuitous expression of the opinion of the board of directors on a question of law and in no way affected plaintiffs’ rights under the constitution of the Board Trade or otherwise. The fact the board of directors had adopted that resolution gave no different color to the Moffatt Company’s subsequent refusal to pay Goffe, Lucas & Carkener. The resolution being passed without authority, plaintiffs’ refusal to take any cognizance of it was quite justifiable. The controversy in which they were involved with Goffe, Lucas & Carkener fell within the class of differences subject to arbitration. The board of directors could not, under the constitution of the Board of Trade, take it out of that class and then decide it-themselves. The apparent effort to do so .did not affect the situation. As previously stated there was no substantial evidence of a refusal by plaintiffs to arbitrate. In fact, no request for arbitration had been made by the complainant firm and until such request was made there was no opportunity afforded plaintiffs either to refuse or to accept arbitration. Section 4 of article 11 of the constitution of the Board of Trade points out what shall be deemed a refusal to arbitrate and there is no pretense any proceedings were initiated under this section against plaintiffs. Clearly it was not plaintiffs’ duty to move for an arbitration. They were satisfied with existing conditions. It was incumbent upon G-offe, Lucas & Carkener to institute arbitration proceedings if they desired to arbitrate and until they did institute them plaintiffs were justified in remaining passive.

III. So far as concerns the charg'e in the complaint that plaintiffs had availed themselves of the resolution of June 5th and of other direct orders of the board of directors in dealing with their own debtors, it is without substance. Plaintiffs are not estopped to stand upon the express provisions of their agreement, as set out in the constitution, rules and by-laws of the Board of Trade, by the fact that they have induced others in different matters to yield obedience to unauthorized orders of the board of directors. The question now is as to the right of the board of directors to usurp a power clearly denied by the instrument by which the board was created and then punish plaintiffs for opposing such usurpation. The language of the constitution in this* connection is unambiguous and plaintiffs’ previous recognition of the board’s unwarranted orders cannot change its meaning and enlarge the board’s powers.

IV. The statements in the complaints to the effect that certain allegations in the petition in this case were violative of section 2 of article 8 of the constitution are unfounded. The allegations referred to were those to the ef~ feet (1) that plaintiffs had been refused the right to arbitrate, (2) that the board of directors were interested in controversies like that between plaintiffs and Goffe, Lucas & Carkener and were attempting to pass on tlieir own cases and (3) that the board of directors by adopting the resolution of June 5th acted outside their authority. These allegations do not fall within the prohibition against “circulating false or slanderous reports relative to the business affairs of other members or relative to the officers, appointees and committees of the association.” They are allegations in the petition in this case. The language quoted from section 2 clearly does not include allegations in pleadings unless it is given an unusual meaning, for which there seems no reason or occasion.

V. Another ground of the complaints filed is that the filing of the present suit constitutes a violation of section 2 of article 5 of the constitution. Plaintiffs’ property rights incident to their memberships entitle them to resist expulsion and to resort to the courts in order to enforce their right to retain such memberships in case the tribunals within the Board of Trade attempt to oust them in disregard of the provisions of the constitution of the Board — which is the agreement out of which spring plaintiffs’ rights and the board of direcors’ powers. It would be singular if the institution of a suit to prevent the unjust and arbitrary termination of plaintiffs’ memberships would itself work their teiv mination. Such a construction of section 2 of article 5 would, in this case, nullify the constitutional provisions as to arbitration and enable the board of directors to nullify them in every case. Under such a construction the board of directors might expel a member without any reason and in case he attempted to restrain the enforcement of the order the very effort to do so would of itself produce the result he sought to avoid. If it is possible that members of a voluntary association could lawfully enter into an agreement of such an anomalous character, their- intent to do so ought to appear very clearly from the language employed before they are held to have done so. Section 2 of article 5 seems designed to protect officers and members from personal liability for votes cast and acts done in official capacity and does not warrant a construction like that suggested in the complaints.

VI. In consequence of the conclusions stated we agree with the learned Court of Appeals that some of the grounds of the complaints charge no offense for which plaintiffs could be expelled and the rest seem to be disproved by the evidence in this record.

The real question in the case is whether, in the circumstances, injunction will lie. ' The complaints were filed by individual members of the Board of Trade and are not the result of 'official action. The board of directors is vested with power to try members against whom complaints have been lodged and, in case of a conviction, has discretion to fine, suspend or expel the offender. In this casé there is still an additional con-, tingency affecting some of the grounds of. the complaints. Plaintiffs are proceeded against, in part, as the representatives of a corporation. The corporation, and not the plaintiffs, is alleged to owe Uoffe, Lucas & Carkener. By virtue of the amendment of December 2, 1901, it is within the discretion of the board of directors whether plaintiffs shall be punished at all for the misconduct of the corporation they represent.

There is no suggestion that any constitutional provision plaintiffs are charged to have violated is immoral, unreasonable or contrary to the written law or public policy. By becoming members of the Board of Trade plaintiffs agreed to submit to trial by its board of directors in case complaint was lodged against them and while they might apply to the courts to restrain the enforcement of an order of expulsion arbitrarily and unlawfully made, can they invoke the powers of equity to restrain proceedings in which even their conviction might not entail any punishment at all? The trial was not begun before this suit was filed. The fact that the complaints filed by Goffe, Lucas & Clarkener contained charges which constituted no offense at all under the constitution, rules and regulations of the Board of Trade and contained others the truth of which plaintiffs seem to have been able successfully to controvert on the trial in this case is certainly no evidence that the board of directors was, arbitrarily, about to convict plaintiffs thereon; but rather the contrary. The opinion of the board of directors on the question of title to the car of grain in dispute as that opinion was expressed in the resolution of June 5th is of no consequence since that question is one the board of directors would not be called upon to decide in trying plaintiffs upon the complaints filed. Can the court assume that the board of directors will hold that to be an offense which is not an offense, or declare that to be true which is disproved, simply because of statements in the complaints filed by Goffe, Lucas & Carkener? It is true there is evidence that the president of the board told Moffatt that unless the Moffatt Company paid the claim of Goffe, Lucas & Carkener he would have to take the consequences and true that Moffatt testified that from the action of the board of directors in passing the resolution of June 5th and subsequently ordering the Moffatt Company to pay he “inferred” he was in danger of expulsion; but these things have little or no tendency to foreshadow arbitrary, unfounded and unlawful action by the board upon the trial on the complaints. In the circumstances we think plaintiffs should have exhausted their remedies within the Board of Trade. It is not to be presumed in advance of the trial that they would have been unlawfully convicted, nor, if convicted, that they would have been punished at all for the default of the Moffatt Company, nor that expulsion necessarily would have been the punishment inflicted. Copies of the charges filed and notice of the date of the hearing were given plaintiffs. The board had not indicated any intent to proceed upon the hearing in any way except in accordance with the constitution and rules in force. If plaintiffs are afforded a fair trial that is all they could ask. To that, by becoming members of the Board of Trade, they agreed to submit. If they are dealt with arbitrarily, convicted upon a wholly invalid charge or without evidence, then they can apply to the courts and the enforcement of the order then properly might be restrained. For a court of equity to take jurisdiction in advance of the hearing, in the circumstances of this case, amounts to permitting plaintiffs to take a change of venue from the board of directors to the circuit court of Jackson county. Courts have no power to usurp the function of the tribunals of associations like the Board of Trade and can interfere only when those tribunals proceed without evidence or in bad faith or violate a valid part of the constitution and rules in dealing with a member or attempt to enforce against him, to his injury, invalid provisions thereof. The proceeding had not reached either stage when this suit was instituted. Unless it is to be held that whenever one member of a voluntary association files against another charges which are untrue or insufficient to support conviction equity may intervene, this judgment is wrong. To so hold would mean that the member proceeded against is to be pern mitted, in practical effect, to demur in the circuit court to charges filed against him in a tribunal of the association and demur there to evidence before it is offered before the board of directors.

This is not a case in which adverse action by the board of directors would' entail such immediate loss to plaintiffs that an injunction promptly applied for, in case of their unlawful conviction, would not preserve all their substantial rights and, consequently, cases involving questions of that hind and cases in which some trial committee, upon whose decision expulsion follows as a matter of course in the absence of additional affirmative action, has acted upon a complaint, are not in point. The cases cited in the briefs of counsel furnish ample authority for the conclusion reached, which is that the judgment ought to be reversed.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

Al of the judges concur.