Musicians Protective Ass'n, Local 466 v. Semon

PRICE, Chief Justice.

I most respectfully dissent from the disposition of this case made by the opinion of the majority.

In my opinion the provision recited in regard to the completion of naturalization was contractual in its nature. The defendant, in terminating the membership on account of failure to comply with the contract conditioning the membership, acted within its rights. The admission of ap-pellee to union membership was conditional, the right to revoke that membership for failure to comply with the condition was reserved.

There is not the faintest pretense or contention that appellee ever attempted to comply with the condition of his continued membership in the Association. Furthermore, the majority opinion overlooks the fact that the plaintiff was accorded due process of law. He sought an appeal to the national body from the order of the local organization annulling the membership: He was accorded this right, given an opportunity to be heard. The judgment, on appeal, of the parent body went against him. It is a judgment of the national body rather than the local body that deprived him of any right of membership in the union. His appeal, in my opinion, suspended the force and effect of the order of the local. Mr. Petrillo recognized this fact in that previous to the hearing before the national body he addressed his communication to him as “Dear Brother”. The hearing before the national body went against appellee-plaintiff. It was that order, and not the order of the local, that deprived him of all privileges of his conditional membership in the union. It is undisputed that plaintiff failed to comply with the condition of the continuation of his membership. See De Mille v. American Federation of Radio Artists, 31 Cal.2d 139, 187 P.2d 7-69, 175 A.L.R. 382, and authorities cited.

The Constitution and By-Laws of both the National and local union of musicians constitute a contract with the members and were binding on the plaintiff. United Brotherhood v. Carpenters’ Local 14, Tex. Civ.App., 178 S.W.2d 558 (e. r.); Smith v. International Printing Pressmen, etc., of N. A., Tex.Civ.App., 190 S.W.2d 769; De Mille v. American Federation of Radio Artists, supra. If such contract may prescribe the terms on which membership in a union may be gained, so it may define the condition which will entail its loss. Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833.

A somewhat extended examination of the constitution of the American Federation of Musicians of the United States and Canada discloses that it is only in cases of expulsion that trials are provided for. Now the provision of the constitution of the national union provides for an annulment of membership. It makes no provision for a trial. An annulment and an expulsion, to my mind, are not the same thing. Implicit in the provision allowing a conditional membership in the union to an alien is that such alien is at the expiration of the time provided by law eligible to naturalization when eligible to take out his first papers. If he is eligible to take out his first papers the laws of the United States, of which we must take notice, confer the right to naturalization. If the party tentatively admitted to membership is not entitled to naturalization then his admission must be void. Now Article 5 of the Constitution of the Local provides as follows:

“All instrumental musicians, at least sixteen years of age, of good moral character or repute and who are citizens of the United States of America or Canada, shall be eligible to membership according to the manner hereinafter provided in the by-laws. Applicants under sixteen years of age must have the sanction of the International Executive Board.”

However, if the local admitted appellee, in the opinion of the writer it is probable that the quoted provision of the National Association would govern. There would be no rt^me or reason in requiring a trial to determine whether an alien, eligible and seeking naturalization, had completed same within the “shortest possible time provided by law”. All persons are presumed to know the law of the United States. There appears in the record testimony of certain immigration officials in regard to the law of the United States. The trial court might resort to these witnesses to ascertain the law of which it was 'bound to take judicial ’notice, but it has no tendency to prove the law of the United States relating to matters about which they testified. The matters of naturalization are governed by the Constitution and Statutes of the United States. It cannot be said that the advice of immigration officials not to present his application for citizenship presented any good reason for his refraining therefrom.

The judgment of the trial court permits a recovery on a contract which the appel-lee had by his own breach terminated.

In my opinion the judgment should be reversed and rendered in favor of the' defendant local union.