The opinion
CARTER; J.
— I dissent.
The majority in this case holds that a member of a union cannot obtain relief in the courts when he has been expelled without the notice or hearing required by the union’s constitution and by-laws because he did not appeal the expulsion to a higher authority in the union which he had the right to do under the circumstances. This exhaustion of remedies within the union is the universal rule on the subject but there are exceptions to it, one of which is that it does not apply where *850 the union has violated its own law with respect to expulsions. The majority states that there is no reason for the exception, and that to apply it completely wipes out the rule, and mentions some of the cases upholding the exception, and, in effect, disapproves them, but it does not do so expressly. It has been held in this state that where the union or other unincorporated association fails to give notice and hearing for an expulsion, the member need not exhaust a remedy by appeal under the constitution of the association. (Swital v. Real Estate Comr., 116 Cal.App.2d 677 [ 254 P.2d 587 ] ; Ellis v. American Federation of Labor, 48 Cal.App.2d 440 [ 120 P.2d 79]; Stoica v. International etc. Emp., 78 Cal.App.2d 533 [ 178 P.2d 21 ]; Weber v. Marine Cooks’ & Stewards’ Assn., 93 Cal. App.2d 327 [ 208 P.2d 1009 ]; Smetherham v. Laundry Workers’ Union, 44 Cal.App.2d 131 [ 111 P.2d 948 ].) The exception is nearly universally recognized. It is said in 168 A.L.R. 1462 , 1468, citing cases from California, Georgia, Indiana, Missouri, Nevada, New Jersey, New Mexico, New York, Pennsylvania and the federal courts: “Where the provisions of the constitution and the bylaws as to suspension or expulsion are not complied with, as where no notice or hearing is given to the member, no written charges are preferred against him as required by the constitution and the bylaws, or where the decision for expulsion is contrary to the constitution and bylaws of the union, or the offense with which the member is charged is not a ground for expulsion, or where the expulsion or suspension is void for lack of authority or jurisdiction in the body or person conducting the trial or rendering the decision for suspension or expulsion, or is otherwise irregular, the requirement that the internal remedies within the union must first be exhausted will not be insisted upon as a condition to grant of equitable relief for reinstatement, as in all these cases the action of expulsion or suspension is not the authorized action of the union, and the member’s duty to exhaust first the internal remedies within the union is generally understood as contemplating an action of the union which is authorized under its constitution and the bylaws. In other words, the rule as to exhaustion of internal remedies pre-supposes a legal and regular proceeding for suspension or expulsion.” (See also 20 A.L.R.2d 531 , 565; id., 344, 386; 4 Am.Jur., Associations & Clubs, § 31.) There should be given a definitive reason why those authorities are wrong. Moreover the plaintiff — expelled member — sought damages as well as reinstatement. The appellate body in *851 the union has no authority to award damages, and inasmuch as it is clear that plaintiff was illegally expelled, it would appear that his right to damages would not be affected by his failure to appeal.
In a case like the one here an appeal would be an idle act and thus unnecessary, for the majority states: “There is no question but that the provisions in the union’s constitution for the expulsion of members were not followed. That document requires that formal charges be filed and a hearing be had.” That being true the appellate body could do nothing else but reverse the expulsion; if it did not a court would do so. In effect the appeal could serve no useful function.
Finally, it should be remembered that the constitution and by-laws of the union constitute a contract between the members and the association and one of the reasons for the rule that an expelled member must pursue his remedy within the association before resorting to the courts is that the contract requires him to do so. However, where the member has been expelled in violation of that contract the association has repudiated it and it is no longer binding on the member. A breach of contract or a refusal to perform by one of the parties excuses the other party, not at fault, from performance on his part. (Twomey v. People’s Ice Co., 66 Cal. 233 [ 5 P. 158 ] ; Gold Min. & Water Co. v. Swinerton, 23 Cal.2d 19 [ 142 P.2d 22 ]; Central Oil Co. v. Southern Refining Co., 154 Cal. 165 [ 97 P. 177 ].) Hence in this case plaintiff was excused from performance of the contract requiring an appeal to a higher authority in the union because of the union’s repudiation and violation of the contract requiring a notice and hearing.
I would, therefore, affirm the judgment.