Pait v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO

WOODRUFF, Justice

(dissenting in part).

While I concur in the ruling to let the writ of injunction issue, I respectfully dissent in the opinion of the majority setting forth the premise therefor and submit that the relief should be broader in its scope for the reasons hereinafter stated.

It is clear as we have heretofore held that under the allegation contained in the petition in the main suit filed in the trial court a justiciable cause of action was stated which warrants a hearing on the merits. In testing the sufficiency of the petition, we were required under the law to accept as true all of the allegations therein contained. The plaintiffs therein are the identical parties who are the relators in this proceeding. Moreover, it cannot be disputed that the petition stated a cause of action which is common to the entire membership, of which each member is a part, of Local 74, and which in my opinion makes it a true class action. See McDonald, Tex. Civil Practice, § 3.34, Vol. 1, p. 272. The jurisdiction of the trial court over this cause, as stated in the pleadings, attached immediately upon the filing of the petition and request for the issuance of citation thereon. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063. From that moment, the action became subject to the applicable laws, statutes and Rules of Procedure of this State.

As I view Rule 42, the named plaintiffs, Pait et al., immediately upon invoking the jurisdiction of the trial court by filing the petition and requesting issuance of citation lost their individual identity as litigants and became, in the eyes of the law, representatives of the class in whose behalf the suit was instituted, and whose rights became *361subject to judicial ascertainment whether individually named of not. They were the functionaries through whom the court obtained jurisdiction over this class action. In order to enable the courts to exercise that jurisdiction, it is necessary that the class be represented. In recognition of that essential it is settled that once the jurisdiction of the court has been invoked in such an action, the petitioners can neither dismiss nor compromise the action without the sanction of the court. Rule 42(b), T.R.C.P. This being true, it necessarily follows that they are precluded from thwarting the judicial processes which have been invoked for the protection of the class by withdrawing from the case or voluntarily doing any other act which would deprive them of being representative of the class and thereby interfere with the power of the courts to proceed.

The relators here who, as heretofore stated, were the identical petitioning parties through whom this class action was instituted and also the appellants in the appeal now pending in this Court, filed this original proceeding in this Court on March 17, 1959, seeking an injunction to restrain the respondent, the appellee in said pending cause, from trying relators in the tribunals of the respondent during the time that this Court’s jurisdiction obtains. Relators inter alia allege in the application that the charges and trials in respondent’s tribunals are designed to inflict punitive measures against relators for resorting to civil authority and that they “in all probability, will be suspended or expelled from membership in their union, which, in all probability, will result in the abandonment of all efforts to obtain relief in the civil courts by other members of Local No. 74 because of the threat and fear of reprisals by Respondent.”

Also incorporated in relators’ verified application is a copy of the charges and notice of trial which have been served on all of the relators by the functionaries of respondent. The first charges each of the relators with a violation of International’s Constitution which subjects them to punishment for filing this action in the District Court before resorting to the tribunals of the Brotherhood. The other charge upon which a trial is threatened is an accusation that each of the relators has worked against the interest and harmony of the International and Subordinate Lodges by attending and participating “in rump meetings and, at such meetings, has advocated the dissolution of Dist. Lodge No. 60.”

During the pendency of this application, and during the time a temporary injunction has been in force, twelve additional charges have been suggested by respondent, upon which, so it is contended, the respondent should be permitted to try relators in its tribunals. As I interpret the provisions of respondent’s Constitution, the relators, if found guilty by the Brotherhood’s trial tribunal, on any of them, could be subjected to expulsion or suspension of membership from the Brotherhood.

Respondent’s basic contention as I understand it is that the courts cannot lawfully prohibit or interfere with respondent’s internal matters and that under its Constitution it has the right to try the relators on these charges, though as it is admitted “some of them” may be punished by expulsion or suspension from membership.

It should also be noted that all of the relators have filed affidavits in this proceeding either denying that they ever committed the acts of which they stand accused or setting forth extenuating circumstances which tend to exculpate them. This, however, is not decisive of the question as I see it.

Reverting to the respondent’s contention that it has the right to try the relators be-' fore its own tribunals, it concedes, through counsel, that it may properly be restrained from trying relators on the first charge which involves relators’ violation of its Constitution by filing this suit in the civil courts before resorting to its judicial forums. The reasoning here is obtuse. Evidently it is based upon the opinion of this; Court that under the allegations contained! *362in the petition filed in the trial court, re-lators had the right as representatives of the class to prosecute this cause in the courts irrespective of that provision of the respondent’s constitutional provisions prohibiting them from doing so. We did not hold this provision void. We only held that under the Constitution of the United States and statutory laws of our State, respondent’s Constitution could not under the allegations of the petition stand as a bar to their seeking redress in courts of law.

The concession seeks to avoid the issue here because our holding only concerned the rights of the relators to institute and prosecute this suit. Consequently the issue here concerns the authority of this Court to protect and maintain its jurisdiction over this suit. To do so it is essential to have the parties litigant before us.. The law, as I view it, which prevents those instituting a class action from withdrawing or stifling such litigation should be at least as applicable to those resisting it.

Respondent has suggested that its trials should not be enjoined so long as they are not arbitrary and unfair to the accused though they are the parties who instituted this suit, and in this connection it is purposed that a transcript of the proceedings will be delivered to this Court for the purpose, as I take it, of review. This procedure in my opinion could involve this Court in endless proceedings in reviewing the actions of respondent’s tribunals wherein members of the class who have instituted this suit may have been deprived of their status as class representatives in this cause by the imposition of penalties of expulsion ■or'suspension of membership. Moreover, what power this Court might have to order .the reinstatement of a member if found to have been aribitrarily and unjustly tried, is not clear because his relief would be peculiar to him as well as a representative of the class. Respondent further argues that other members who are not now nominal parties to this action may be substituted for those who may be expelled or suspended from respondent’s membership. If this is sound reasoning, then indeed any order of reinstatement of a nominal party plaintiff in this class action would be peculiar to him and thus involve issues entirely foreign to those before us now.

In the writer’s opinion, if this Court has the authority under the law to preserve its jurisdiction over this cause by enjoining any act by respondent which would interfere therewith, then the injunction should be issued to restrain respondent from taking any action which would either directly or indirectly result in expelling or suspending any of. the parties who instituted this suit from membership in Local No. 74 or the International Brotherhood during the period of time this cause remains under the jurisdiction of this Court.

Let it be noted at this point that the respondent under such an order would be free to try in its tribunals any of the parties who instituted this suit for any offense under its constitution and assess any penalty its tribunal deemed warranted except, however, one which would either directly or indirectly deprive such party of his status as a representative of the class in whose behalf this action is prosecuted.

Though the writ of injunction as ordered by the majority of the Court is not as broad as in my opinion it should be for the reasons set forth above, the writer concurs in the order of the majority with the reservations herein expressed.