(dissenting).
I regret that I am unable to -agree with the majority opinion in this case.
It is my view that at the time of the tragedy here involved taking the lives of Oran L. Bentley and Farley H. Hennessy and the serious injury of Thomas M. Collins that all of these persons were employees of the Grand Aerie, Fraternal Order of Eagles, and not of local Aerie No. 2407. Therefore they are not entitled to compensation under the laws of this state as against the local Aerie.
Let us examine the provisions of the constitution of the local Aerie relating to the issues presented in this case. Section 6 (c) of article 2 of the constitution provides: “Vacancies, Any vacancy which may hereafter occur in the office of Secretary of any Subordinate Aerie by reason of death, resignation, termination of office, or any other cause, may be filled by regular election with permission of • the Board of Grand Trustees or by appointment by the Chief Auditor as the Board of Grand Trustees shall determine.”
It will be observed that this section provides for the filling' of vacancies, not only caused by death or resignation, but from “any other cause” including removal. Section 9 of article 2 then provides that: “Vacancies. Except in the case of removal, or suspension, of. any officer for cause, by a representative of the Grand Worthy President, vacancies in the offices of any Subordinate Aerie shall be filled as hereinafter provided: If -a vacancy occurs in the office of Worthy President, the Worthy Vice-President shall succeed to the office of Worthy President, and the office of Worthy Vice-President shall be declared vacant; when a vacancy occurs in any other elective office, or in the office of Junior Past Worthy president, each member shall be immediately notified, in writing, of the existing vacancy and of the time and place that action will be taken by the Aerie to fill such vacancy for the unexpired term. At the meeting stated in such notice, the Aerie shall decide, by a majority vote, whether to fill such office by election or appoint*191ment, except that the office of Worthy Vice-President may be filled by election only. If the Aerie decides on appointment, then the Worthy President shall forthwith appoint a member of the Aerie in good standing to fill the vacancy; if the Aerie decides on an election, then nominations may be had at the same meeting and the election at the next following regular meeting of the Aerie, * * *. Any vacancy caused by the removal of any officer by, or resignation of. any officer at the request of, the Grand Worthy President or Chief Auditor or the authorised deputy of either, shall be filled forthwith upon such resignation or removal and kept filled for the unexpired term by appointment and installation made by the Grand .Worthy President or his representative. Any resignation by any offiver, or member, of any Subordinate, State, District or Provincial Aerie made to or at the request of the Grand Worthy President, Chief Auditor or authorized. representative of either shall be effective forthwith without formal acceptance by such Aerie.” (Emphasis supplied.)
There is not a scintilla of evidence in the entire record that the appointment of Hennessy was made in accordance with the provisions relating to the filling of a vacancy created by voluntary resignation. In the first place there was no notice given to the members of the local Aerie that a vacancy existed in the office of secretary of the local Aerie, fixing the time and place that action be taken to fill such vacancy. There is not & particle' of evidence that a meeting was ever held pursuant to a notice, or otherwise, wherein the members of the local Aerie decided whether the vacancy in the office of secretary should be filled by election or appointment. The language of the constitution is to the effect that' if, by a majority vote, the members decide that the vacancy shall be filled by appointment, that such appointment shall be forthwith filled by the Worthy President of the local Aerie.
Nowhere in the record is there one word to the effect that Hennessy was appointed by the Worthy President of the local Aerie. When W. J. Fitzgerald, representative of the Grand Aerie, was asked the question: “You were present at the meeting at which Hennessey was appointed, were you not?” he answered: “I appointed him.” And later he was asked: “And you appointed Mr. Hennessey?” and again he answered “That is correct.” According to the record in this case, Fitzgerald at that time was Deputy Grand Worthy President of the Grand Aerie and Acting Grand Deputy Auditor. He was sent here by the Chief Auditor of the Grand Aerie under the provisions of section 19, article 52 of the constitution of the local Aerie for the express purpose of -correcting the irregularities in the office of the secretary of the local Aerie whose record of the finances of the local Aerie was at variance with both the records of the treasurer of the local Aerie and the bank at which the funds were kept and to do just what he did do.
*192The record unequivocally shows that the provisions of the constitution relating to the filling of vacancies applicable to a voluntary resignation -were not followed in a single particular. On the other hand the constitutional procedure for filling the vacancy in the office of secretary, in case of removal or resignation by request of the Grand Aerie, was followed in every particular except that O. L. Bentley was permitted to resign. This may be reasonably accounted for because of the fact that he was a brother of Ralph Bentley who, during a part of the time, at least, was a field director of the Grand Aerie and who had been sent to Phoenix to assist O. L. Bentley in straightening out his books. The resignation of O. L. Bentley under the circumstances cannot logically be said to be voluntary. It clearly falls in the category of a “resignation by request.” As above pointed out his records were woefully out of accord with the records of the local treasurer and with that of the bank. Fitzgerald, in reporting his action to the local Aerie by letter on April 12, 1949, gave a resume of the difficulties which the Grand Aerie had experienced with the local Aerie ever since its organization because of improper use of the funds of the local Aerie by those in authority. In closing this letter he stated: “Secretary Bentley’s resignation is effective April 15, 1949. Brother F. H. Hennessey of Phoenix, Arizona and a member of Olympia, Washington, Aerie # 21 is directed by the G.W.P. and C.A. (meaning Grand Worthy President and Chief Auditor) to serve as Secretary Manager to man - age the affairs of the Aerie, pursuant to Article 52, Sec. 19 of the C.S.A. (Constitution Subordinate Aerie).” (Emphasis supplied.)
Section 19 of article 52 of the Constitution Subordinate Aerie reads as follows: “Emergency Administration. Whenever in the opinion of the Grand Worthy President and the Board of Grand Trustees any Subordinate Aerie, or any of its officers, shall for any reason fail to function under the lawful procedure provided by our laws, the Grand Worthy President on approval of, the Board of Grand Trustees is authorized to remove any or all of its officers and to direct the Chief Auditor to assign a representative of the Grand Aerie to take full charge of such Aerie’s affairs until a full complement of officers shall have been appointed or elected under the direction of the Chief Auditor. Such Aerie and officers shall be under the direction of the Grand Aerie representative until the Chief Auditor is assured that such Subordinate Aerie will faithfully >and properly conduct its affairs in accordance with all required and ordained procedure of the Order.”
If the facts are squarely faced there is absolutely no escape from the conclusion that Hennessy was appointed secretary by Fitzgerald who was acting as a representative of the Grand Aerie under the authority vested in him under the provisions of section 19 of article 52, supra. How any other conclusion can be reached is beyond *193my comprehension especially in light of his letter of April 12th, before any question of compensation arose. Section 19, article 52 expressly provides that: “ * * * such Aerie and its officers shall be under the direction of the Grand Aerie representative until the Chief Auditor is assured that such Subordinate Aerie will faithfully and properly conduct its affairs in accordance with all required in the ordained procedure of the Order.”
Fitzgerald appointed Hennessy on the 12th. It is unreasonable to think that he intended to surrender the affairs of the local Aerie to Hennessy and to return the control thereof to the local Aerie on the very day of Hennessy’s appointment in the face of the mandatory provision of the constitution that the Aerie should be in full charge of the Grand Aerie and remain under its direction until the Chief Auditor was satisfied that the local Aerie would faithfully and properly conduct its affairs. Fitzgerald had nothing upon which to base a conclusion to the effect that it would so conduct its affairs and furthermore it was the Chief Auditor, not Fitzgerald, who had authority to determine that question.
If, as claimed in the majority opinion, this was a case of voluntary resignation and not one of removal then Fitzgerald had no right whatever to appoint Hennessy. Under the clear provisions of section 9, article 2 of the constitution it became the duty of the Worthy President of the local Aerie to make such appointment. The record is wholly barren of any action taken by the local Worthy President or of the Aerie as a whole concerning the appointment of Hennessey. True they purported to accept the resignation of Bentley but no further steps are shown to have been taken by any person except by Fitzgerald concerning the appointment of Hennessy. His statements before the commission are not only conflicting in themselves but are so at variance with the clear provisions of the constitution delineating the procedure to be followed under such circumstances that they indicate either a desire to aid the families of his brethren in securing compensation in this case or else they indicate a total ignorance of the meaning of the constitutional provisions of the Aerie. In either event they are not entitled to any weight as evidence.
On the ground that none of the persons involved in this litigation were employees of the local Aerie at the time of the accident and injury the findings and award of the commission should be sustained.