On Motion for Rehearing. In our former opinion the majority of the court conceived that we accepted the facts found by the trial court, but drew therefrom legal conclusions different from those drawn by him. To the majority it is clear that the decision of November 18, 1920, is a decision of a dispute and not a contract. As we stated: "If the ruling contains broader language than the occasion required, then its writer merely proved that the use of obiter dicta was not the exclusive vice of judges." A decision broader than an occasion requires is not a judicial, but is a legislative, action. Prof. Maitland, in his work Canon Law, said — he was referring to time antecedent to the Reformation — that the important part of the decision of a case at canon law was the obiter dicta stated therein, for the tribunal had the power to legislate. And the want of power of courts at common law to make their obiter dicta binding — their want of legislative power — he stated to be the fundamental difference in their power from that of the power of the tribunal administering canon law. If under the guise of deciding a dispute, of exercising their judicial power, the governing body of a voluntary association could substitute legislation for interpretation of the laws of their society as applied to facts before them for decision, they thereby could confer away rights of the society or of members, which it was never contemplated should be in their power to do. And in this connection we again quote from our former opinion: "So long as such governing bodies do not substitute legislation for interpretation, do not transgress the bounds of reason, common sense, fairness, do not contravene public policy, or the laws of the land in such interpretation and administration, the courts cannot interfere." And there is no reason to suppose that in the decision of November 18, 1920, there was any such intention. Nor do we think that their intention should be subverted by calling their decision a contract.
There are at most but four positions on the train involved in this suit, the exclusive right to fill which appellees are claiming in this action. If appellees are awarded such exclusive right, the necessary result will be to exclude the train service employees of the I. G. N. and M. K. T., who were awarded the right to fill such positions for 50 per cent. of the time by President Whitney of defendant union, from the performance of any service on the train in question. Such train service employees are therefore indispensable parties to this suit. The principle underlying all administration of justice is this, that no proceedings shall take place in court affecting the rights of anyone without affording him an opportunity to be heard. When such a defect occurs, it presents fundamental error which the parties litigant cannot waive, and which the court must take cognizance sua sponte at any stage of the proceedings and correct, not for the benefit of the parties to the action, but for the benefit of the parties whose interest will be injuriously affected, and who are not before the court. The rights of such parties cannot be waived by the parties litigant, and should the attempt be made to do so, the court must not permit it, by refusing to proceed to judgment. Needham v. Cooney (Tex.Civ.App.) 173 S.W. 979, writ of error refused. *Page 243
We do not understand that appellees contest the principle in support of which we have cited Needham v. Cooney as authority, nor that they seriously contend that the train service employees of the I. G. N. and M. K. T., who would be excluded from employment in manning the train if appellees are successful in establishing in themselves an exclusive right to man it, are not indispensable parties to this suit. But we understand their contention mainly to be that such train service employees of the I. G. N. and M. K. T. are, under the doctrine of virtual representation, parties to this suit, in virtue of the fact that service was had on the president and on two general chairmen of defendant union; and especially do they urge this to be true on the ground, as stated in their motion for rehearing, that the employees of the I. G. N. and M. K. T., who would have to be made parties, as having the right under the president's award to fill such four positions for six months in the year, are in excess of one hundred and fifty, and so cannot in reason be brought before the court. But there are insurmountable obstacles to applying the doctrine of representation so as to hold that the employees of the I. G. N. and M. K. T. are constructively before the court in this action. In the first place, and in regard to the contention that such employees form a class too numerous to be brought before the court, there are no allegations to this effect in the pleadings.
As stated in Corpus Juris, vol. 21, p. 287: "Where a suit is brought by or against a few persons in a representative capacity, that fact must be alleged of record, so as to present to the court the question whether sufficient parties are before the court properly to represent the rights of all, and in the absence of such an averment the rights of the other members of the class sought to be represented will not be affected by the proceedings."
It is not enough to advise the court for the first time in a motion for rehearing that the suit is a class suit, and that all the members of the class not actually before the court are so constructively, because certain members are actually so. Such information has the status of information dehors the record.
But aside from this, as appears from our former opinion, the parties that are before the court have no pecuniary interest in manning the train in question. They have no such interest in the subject-matter of the litigation as to place them in the same class wih reference to the right to man the train, as do the train service employees of the I. G. N. and M. K. T. Their presence in court cannot, therefore, under the doctrine of representation, have the effect of bringing such employees constructively before the court. This appears from McMurray v. B.R. T., cited in our former opinion.
Motion for rehearing is overruled.