Terrell v. Knights of Ku Klux Klan , 155 Ga. 135 ( 1923 )

Beck, P. J.

We are of the opinion that the court did not err in sustaining the general demurrer and dismissing the petition. That is the conclusion reached after considering each of the prayers of the petition and the relief sought. Taking up these prayers seriatim, they are as follows: After the prayer for process, the first prayer is that the defendants and each of them, and all the officers, agents, and subordinate branches of the defendant corporation be restrained and enjoined from banishing, suspending, expelling, preferring charges against, or trying any of the petitioners on any charge whatever. It is manifest that petitioners were not entitled to an injunction or to the relief here sought. Under the charter, and the by-laws passed under the powers there granted, the order or society of the Knights of the Ku Klux Klan could make provisions for the preferment of charges against its members, for service of the same, for the defense of the member under trial, and then, if conviction were had, provision is made for an appeal to the supreme authorities of the order. It is not alleged that the complainants are about to be tried and expelled. In one paragraph of the petition it is urged that they were informed that they had been expelled or banished; but there is no allegation in the petition that as a matter of fact they had been banished or expelled. Some officer of the order had said that four of the members were expelled or banished, and they had seen reports to this effect in the newspapers. These allegations do not show such action upon the part of the order as authorized the issuance of an injunction; and the brief of plaintiffs in error distinctly states that they do not insist that any of them have been expelled. It is stated in that brief that petitioners deny that “they have been either banished, suspended, or expelled, and insist that they are yet members of defendant society; nor is this bill brought for the purpose of invoking the aid of the court in restoring to membership any of the plaintiffs in the original petition;” and inasmuch as the order has, by its charter and by-laws, the right to prefer charges and to try the members, the court below could not 'properly have enjoined them from proceeding with the trial; for, in the first place, if the finding of the body trying them had been adverse, the members expelled or threatened with expulsion would have had the right to appeal to the supreme authority of the order. If they had been denied their right of appeal, or if the trial had not been in conformity to the by-laws and charter of the corporation they might, by application for injunction, have prevented the judgment of expulsion from being enforced, by an appeal to the court.

The next prayer is for the- appointment of a receiver. The facts stated in the petition do not authorize the appointment of a receiver. What could have been effected by the appointment of a receiver? The plaintiffs have no financial interest in the property bought for a home for the president, nor in the building purchased for the headquarters for the order. The moneys paid in, and with which these buildings must have been purchased, were donations made by those seeking to become members of the order. A very small sum is charged as annual dues; but there is no allegation in the petition to .show that all of the annual dues are not consumed in the expenses of the order. We do not base the ruling that the plaintiffs were not entitled to a receiver upon the ground merely that they had no financial interest which ■ would be affected by official acts complained of, but on the ground that it does not appear what good could in any way be accomplished for the order by the appointment of a receiver, nor the purpose that would be subserved by such an appointment. The work of organizing and propagation seems, from the allegation of the petition, to have been one of the most important concerns of the order; and there is nothing to show that the purchase of expensive-headquarters was not essential to the propagation, to organization, and to the maintenance of the society. If the issuance of bonds was an act ultra vires, it may be that the collection of the bonds can be enjoined;Though it is not necessary to discuss that or to rule upon it, nor is any such injunction sought.

Next in order is the prayer that the said defendants (meaning, we assume, the two individuals joined as defendants) be required to cancel their alleged claims of indebtedness of said corporation to them, and that they be required to refund to said corporation the five thousand dollars paid to them on advertising account, and other moneys alleged to have been illegally expended by them. A court of equity could not properly entertain a petition to require parties to cancel their claim of indebtedness. If, after proper efforts upon the part of members of the corporation to have the - -governing and controlling authorities contest claims against the order which are not well founded, such authorities refuse to take necessary steps to defeat such claims, or collude with those holding the claims, then members might maintain a suit to protect the order against the enforcement of such, claims; but until that is shown, a court of equity will not interfere, even if, under any circumstances, it would order one claiming to be a creditor to cancel his claim. So far as that part of the petition under consideration, which seeks an order from the court requiring the two individuals joined as defendants to refund to the corporation the five thousand dollars paid to them on advertising account, and other moneys alleged to have been illegally expended by them, is concerned, it does not appear that the plaintiffs in this case have such an interest in the fund as would entitle them to this relief. If the corporation had paid to the defendants Clarke and Tyler funds to which they were hot entitled, or. which they had obtained by fraud, it might be that in a suit framed for that purpose the authorities of the' order might be required to sue for its recovery; or possibly members of the corporation, upon a showing that there was collusion between the executive authorities of the order and individuals who had received funds that were improperly paid to them, might maintain a suit to recover judgment against those who had received such funds, for the benefit of the order itself; though that question is not directly presented here and we do not decide' it. We go no further than to decide that the prayer requiring cancellation of claims and a refunding of moneys paid could not he granted under the allegations of this petition.

The fourth and fifth prayers are that Clarke and Tyler be enjoined and restrained from further connection and control of the society and its affairs, and that they be removed from all official connection with or control over the order. A court of equity would not adopt the radical measures here invoked, in advance of some action by the society, in view of the fact that the society has ample machinery to prefer charges and to try charges against any of its members or officials. Before petitioners will be entitled to the remedy sought, it is essential that it should appear that they have exhausted their remedies within the society; and that those in control refuse to put in motion, upon charges properly made, the machinery appropriate to effect the expulsion of Clarke and Mrs. Tyler, or their removal from offices. It is true that charges were preferred by Terrell, Hooper, Atkin, and Padon, and it is inferable that those charges have not been acted upon; but the mere fact that they have not been acted upon does not sufficiently show that they will not be acted upon. These charges were preferred late in November, and the petition was filed in December, about thirty days later. There is no other allegation in the petition to show that such a period of time had elapsed between the filing of the charges and the time of bringing this suit as would disclose an intention upon the part of the proper authorities in the order to connive at acts of misconduct upon the part of Clarke or Mrs. Tyler, or to leave the charges pending indefinitely. The order has some five hundred subordinate lodges; presumably there is a large amount of official business to be attended to; and it is not shown how often the governing authorities meet, or that regular meetings have passed without notice being taken of the charges pending, or anything else to show that the charges will be ignored, except the declaration of two or three persons who are officials of the order.

The only prayer of the petition not specially noticed is the prayer for general relief; and nothing has been suggested to us in the way of general relief that would be germane to the special prayers that we have not already considered. ’ It does appear in the bill that large sums have been expended in the purchase of a college or university, and debts incurred in this behalf; but there is no prayer to enjoin the society from proceeding with this enterprise, nor is it indicated that such, an institution might not be appropriate to the propagation of the principles underlying the society in question. We therefore conclude that the court properly sustained the general demurrer; and the judgment dismissing the case is Affirmed.

All the, Justices concur.