Gonsalves v. Associacao Protectora Uniao Madeirense Do Estado Da California

NOURSE, P. J. Plaintiff sued for a writ of mandate to command the defendants to restore him to membership in defendant lodge with the benefits and privileges to which a member is entitled. The defendants by answer pleaded that the plaintiff was expelled from membership in the lodge as a result of a trial upon charges of misconduct duly filed and heard in accordance with the constitution and by-laws of the lodge. The trial court found that the proceedings before the lodge were in due form and denied the petition.

In support of his appeal from the judgment the plaintiff raises three points: that the board of directors did not have jurisdiction to try and expel him, that the letter which was the basis of the charges against him was privileged, and that he was not accorded a fair trial. No argument is made in support of the third point. A statement of suspicious circumstances is recited on which the appellant lays his conjectures that he was treated unfairly and nothing more. We [152]may assume from the manner of presentation that this ground has been abandoned.

The question of jurisdiction rests in the interpretation of the constitution and by-laws of the order. These were printed and circulated in the Portuguese language and each party tendered its own translation. Expert testimony was taken and the trial court found that the constitution and bylaws conferred upon the board of directors these functions:

‘ ‘It is the duty of the Board of Directors which consists of seven members to decide any complaint of one member against another member and after considering all the attenuating and aggravating circumstances to apply the corresponding penalties. ’ ’

Appellant states that in his translation of the constitution and by-laws there is a section reading:

“Any complaint by a member of one Council against a member or officer of another Council, shall be forwarded at once to the Subordinate Council of which the accused is a member.”

In the same translation there is a section defining the powers of the board of directors and reading, in part, “To consider only a complaint when the same is presented as follows: . . . Reason why complaint was not considered by the Subordinate Council.”

In a translation left with this court upon stipulation of the parties during the oral argument we find in section 1 of article XIV, chapter III, this provision: ‘ ‘ Complaints may be filed with any Subordinate Council, the Supreme Board of Directors, . . . against any violation of the provisions of the Constitution or By-Laws. ...” And in the same volume (chap. II, art. IV, § 8, subd. 22) the board of directors is authorized: “To decide any complaint from a member against an officer or Subordinate Council; from member against member of any Subordinate Council. ...”