Freundschaft Lodge No. 72 D. O. H. v. Alchenburger

Mr. Justice Farmer

delivered the opinion of the court:

Humboldt Lodge No. 84 D. O. H. has entered a motion to dismiss the appeal as to it on the ground that less than $1000 is involved. If this suit were purely an action ex con-tractu or sounding in damages this court would have no jurisdiction to entertain the appeal, no certificate of importance having been granted by the Appellate Court. The suit, however, is not alone for the recovery of money. An injunction and other relief not incident to the recovery of money are sought, and the case comes within the provisions of the statute authorizing appeals “in all other cases” than actions ex contractu where the amount involved is less than $1000, and cases sounding in damages where the judgment is less than $1000. (Richards v. People, 100 Ill. 423.) The motion is therefore overruled.

Both lodges whose money and property are here involved are subordinate lodges composed of women, and are called lodges of the Hertha degree D. O. H. The authority for their organization emanates from the constitution of the United States Grand Lodge D. O. H. Prior to 1869 there were two United States grand lodges, with subordinate State grand lodges, — one known as “Ancient Order of Harugari” and the other as “The Independent German Order of Harugari.” Neither was incorporated, and in January of that year these two organizations merged into one order, under the name “Deutscher Orden der Harugari,” (German Order of Harugari.) That order has existed up to the present time and has never been incorporated. It is the supreme grand lodge of the United States, to which all State grand lodges are subject. The independent German Order of Harugari granted a fraternal charter to the Illinois grand lodge of that order in 1863, under which the Illinois grand lodge was organized and acted until 1869. In March, 1869, the grand lodge of Illinois procured a charter from the legislature of the State of Illinois, in which it was named “The Grand Lodge of the Independent German Order of the Harugari of the State of Illinois.” It is insisted by appellants that this charter was never accepted and that its provisions were never complied with by the grand lodge. We find no evidence to the contrary in the record.. At the meeting of the grand lodge of Illinois in August of that year the grand master reported the consolidation of the two United States grand lodges and of the dropping from the names of the order “Ancient” and “Independent,” and a committee of three was appointed to see to securing a change of the charter of the grand lodge by omitting the word “Independent” therefrom. In the stipulation of facts it is stated that all State charters prior to 1869 were after the consolidation of the two United States grand lodges, and about August 1 of the year 1869, taken up and new charters issued to the different States by the United States Grand Lodge D. O. H., that being its name after the consolidation. The Illinois grand lodge continued to act as a grand lodge D. O. H. of the State of Illinois, and was recognized by the United States Grand Lodge D. O. .H. as such. The minutes of the meeting of the grand lodge of Illinois of 1874 show the grand president reported that “a charter was obtained from Springfield, Illinois, under the name of D. O. H.,” on September 30, 1873. Another corporate charter appears to have been secured in 1877, in which the name of the grand lodge is “Gross Loge des Deutschen Ordens der Harugari des Staates Illinois,” (Grand Lodge of the German Order of Harugari of Illinois.) In 1886 proceedings were had for the consolidation of the corporation created by the act of the legislature of 1869 and the corporation created by the charter issued under the general law of 1877. This, the minutes recite, was agreed to by.unanimous vote at the meeting of the grand lodge held in 1886, and that thereafter the grand lodge was to work under the name of “The German Order of Harugari of the State of Illinois.” A committee was appointed to take necessary steps for legally carrying out the resolution. The minutes of the grand lodge meeting of 1887 show that the grand president reported the incorporation of the grand lodge of the State of Illinois had been completed.

From this history of the United States and State grand lodges appellants attempt to show that the subordinate lodges here involved do not hold their charters by virtue of the authority of the Illinois grand lodge, a corporation; that said subordinate lodges are unincorporated; that they hold their charters from the United States grand lodge alone, and are subject only to the constitution and laws prescribed by the United States grand lodge, which is unincorporated, and are not subject to the authority of the Illinois grand lodge. It is also further contended that the Illinois State grand lodge, by the adoption of its constitution in 1904, separated itself from the grand lodge of the United States and repudiated its supremacy by declaring itself an Illinois corporation, and that in and by said constitution it was left optional with lady lodges to submit to the jurisdiction of the State grand lodge.

The abstract is so unsystematically arranged and so poorly indexed that it has been difficult to find exhibits offered in evidence on the trial or embraced in the stipulation of facts. We have endeavored, however, to at least find such portions of the documentary exhibits as are necessary to a decision of the case. As we understand the record, the grand lodge of the State of Illinois, in the matter of instituting and supervising subordinate lodges, whether lodges of men or of women, obtained its authority from the constitution of the United States grand lodge. By that constitution the provisions relating to the organization of men’s lodges were, so far as applicable, made to apply to Hertha lodges. At least five members were required to constitute a subordinate lodge. The subordinate lodges here involved were established by the Illinois grand lodge purporting to act under and by virtue of the authority of the United States grand lodge, and for more than ten years said subordinate lodges maintained their existence and operated under, and by virtue of such authority and conformed with the laws, rules and regulations of the United States and the State grand lodges. During all this period, so far as we understand, the subordinate lodges were accepted and treated by the State and United States grand lodges as fully organized and constituted subordinate lodges, entitling their members to all the privileges and benefits of members of the order. Under such circumstances they must be held to be bound by the laws of said order. Under said laws a majority of the members of said subordinate lodge had no power or authority to dissolve or destroy the lodge so long as five or more members remained and desired to continue the organization. In each of these cases more than the required number to constitute a lodge remained in the organization and desired to continue its existence. In the Freundschaft Lodge case, at a meeting held in September, 1904, by a majority vote a resolution that “we sever our connection with the order of Harugari” was adopted. Five or more members did not vote for the resolution. Those voting for the resolution thereupon, at the same meeting, organized Freundschaft Lodge No. x, and afterwards had it incorporated as Freundschaft Lodge No. 1, Hertha Schwestern von Illinois. Later they, acting with others, organized and procured to be incorporated the Illinois Grand Lodge of Hertha Schwestern von Illinois. By these acts they severed their connection with Freund-schaft Lodge No. 72 and with the order of Harugari. Those who did not participate in these acts but remained with Freundschaft Lodge No. 72 elected officers of said subordinate lodge, and they have since that time been recognized as a lodge by the State and United .States grand lodges.

We are unable to see any merit in the contention that by the adoption of the constitution of the Illinois grand lodge of 1904 said State grand lodge repudiated the supremacy of the United States grand lodge and renounced its allegiance thereto. The constitution of the State grand lodge, as we read it, expressly recognizes the supremacy of the United States grand lodge, and that the State grand lodge is subordinate to the authority of the United States grand lodge. It provides for the payment by the State grand lodge of a per capita tax for the maintenance of the United States grand lodge and for sending representatives to its meetings. . If the withdrawing members of the organization have forfeited rights and property they did it by their own voluntary act, and in such case the rule against the enforcement of forfeitures in a court of equity cannot be invoked. Harper v. Tidholm, 155 Ill. 370; Village of Morgan Park v. Gahan, 136 id. 515.

The same principles govern the case of Humboldt Lodge No. 84, and in our opinion the superior court correctly decreed the money and property involved, and the records, paraphernalia, etc., of said lodges belonged to Freundschaft Lodge No. 72 D. O. H. and Humboldt Lodge No. 84 D. O. H., the existence of said lodges having been continued by the requisite number of members who did not withdraw -therefrom.

We agree with the Appellate Court that said complainant lodges have no exclusive right to the words “Freund-schaft Lodge” or “Humboldt Lodge,” or to the word “Hertha,” or to said words combined, and that none of their rights were violated by the new organization taking the name “Hertha Schwestern von Illinois,” or the use of the lodge names “Freundschaft Lodge No. 1 H. S. I.” or “Humboldt Lodge No. 4 H. S. I.”

The judgment of the Appellate Court will therefore be affirmed.

T . , Judgment affirmed.