Fed.Cas. page 1059, No. 4,675, 1 Summ. 46, as follows:
'Mr. Justice Story said: 'Although, in virtue of these several acts, the corporations (one of Rhode Island and one of Massachusetts), acquired a unity of interests, it by no means follows, that they ceased to exist as distinct and different corporations. Their powers, their rights, their privileges, their duties, remained distinct and several, as before, according to their respective acts of incorporation. Neither could exercise the rights, powers, or privileges conferred on the other. There was no corporate identity. Neither was merged in the other. If it were otherwise, which became merged? The acts of incorporation create no merger, and neither is pointed out as survivor or successor. We must treat the case, then, as one of distinct corporations, acting within the sphere of their respective charters for purposes of common interest, and not as a case where all the powers of both were concentrated in one. The union was of interests and stocks, and not a surrender of personal identity or corporate existence by either corporation."
And Judge Parker stated:
'As heretofore stated, there is no question but that the Grand Lodge representing the national order is the real party in interest in the suit. We think it equally clear that the New Jersey corporation, in whose name suit is brought, is an incorporation of the Grand Lodge representing the national order. A number of witnesses so testify, and it is significant that the certificate of incorporation is signed by as many citizens of New York as of New Jersey and contains the provision that the corporation shall have power to conduct and supervise subordinate lodges 'throughout the United States and Canada, which lodges shall have the same powers as are herein conferred, but shall be subject to and under the control of the Grand Lodge."
Since the defendant corporation was incorporated in the State of New Jersey, and has existence there only as the parent or 'conductor,' 'supervisor,' and 'controller' of the subordinate lodges, to which capacity the relief sought in this proceeding relates, the charter in the District of Columbia, while giving it a local existence, does not subject it to the jurisdiction of this Court to take over the control of its affairs through the appointment of a receiver, and for the other drastic relief sought by plaintiff.
Defendants also urge that plaintiff does not have standing to sue in a class action, representing so many throughout this country and other countries, who have not acquiesced therein. Rule 23 of the Federal Rules of Civil Procedure
'(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
'(1) joint, or common, * * *.' Inasmuch as this plaintiff, as grand traveling auditor, is so positioned to have access to records, which others of the class could not have, I think he could adequately represent the class in so far as the procurement of evidence is concerned, but there are other considerations. As stated by our Court of Appeals in Knowles v. War Damage Corporation, 83 U.S.App.D.C. 388, 171 F.2d 15, 18, certiorari denied 336 U.S. 914, 69 § . Ct. 604, 93 L. Ed. 1077:
'There must be a showing of adequate representation of the class, for members of that class are to be bound by the outcome of the action. Issues determined in a true class action are res judicata so far as any member of that class is concerned, even though he never became a party to, or knew of, the class action itself. Factors bearing upon adequacy of representation are various and are not specifically enumerated in the law: It is pertinent to consider whether other members of the class have notice, express or constructive, of the pendency of the action and of its representative character; whether such members desire, or acquiesce in, such representation; whether the number of parties is sufficient as compared to the numerical size of the class.' [Emphasis supplied.]
While it may be assumed that the entire class, on behalf of which the plaintiff purports to bring this proceeding, would want the scandalous conditions set forth in the complaint corrected, which for purposes of this motion must be considered true, there is no showing that any substantial part of the membership other than the plaintiff himself desires the affairs of this voluntary fraternal organization to be taken out of the hands of the membership by an officer of this Court to accomplish such correction, when quite obviously, if there be a substantial part of the membership desiring to do so, complete correction can be achieved by the membership and the constituent lodges through the processes provided by the constitution and by-laws of the organization itself. It would require a much stronger showing than has been made to convince this Court that this is a true class suit within the meaning of Rule 23 of the Federal Rules of Civil Procedure, supra. In these circumstances, my conclusion is that the plaintiff has no standing to maintain this action, and accordingly defendants' motion to dismiss will be granted.
Counsel will prepare an appropriate order to carry this decision into effect.