American Order of Scottish Clans v. Merrill

• Decision Date: 18 June 1890
• Citation: 24 N.E. 918,151 Mass. 558
• Parties: AMERICAN ORDER OF SCOTTISH CLANS v. MERRILL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 558

24 N.E. 918

AMERICAN ORDER OF SCOTTISH CLANS v. MERRILL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 18, 1890

June 18, 1890

HEADNOTES

COUNSEL

C.T Gallagher and H.R. Bailey, for plaintiff.

E Avery and W.H. Hart, for defendants.

OPINION

HOLMES J.

This bill was brought by a fraternal beneficiary corporation formed under St.1888, c. 429, to enjoin certain of the defendants from organizing another corporation under the same act by the name of "The Order of Scottish Clans," and also to enjoin the insurance commissioner and the secretary of the commonwealth from issuing to them the certificate and charter provided for in the act. After the subpoena was served, the organization of the corporation was completed, and a charter was issued, whereupon the plaintiff made an amendment to its bill, in the nature of a supplemental bill, alleging these facts. It is found as a fact that the name "Order of Scottish Clans" is "so similar to the plaintiff's name as to be liable to be mistaken therefor," and it follows that it is within the express prohibition of section 2, if we are at liberty to consider that fact; that is to say, if we can go behind the effect of the certificate of the insurance commissioner and of the charter consistently with the terms of section 7.

Of course the right of the defendant to use the name might be left subject to revision upon a private suit, notwithstanding the issue of the charter, after the analogy of patents. The question is one of construction, and the language of the statute is not entirely conclusive. But practically the construction is settled by Boston Rubber Shoe Co. v. Boston Rubber Co., 149 Mass. 436, 21 N.E. 875. That case arose under St.1870, c. 224, but the provisions of that act are followed substantially in the one before us, except that the prohibition against adopting a name previously in use, or so similar as to be liable to be mistaken for it, in section 2 of the latter, is somewhat fuller and more direct than that in section 8 of the earlier act. Pub.St. c. 106, § 17. The condition attached to the granting of a certificate by the insurance commissioner in section 7 of the present act is "if it appears [i.e., to the commissioner] that the purposes and proceedings of the corporation conform to law," instead of "that the requirements of the preceding sections of this act have been complied with," in section 11 of the Acts of 1870. Pub.St. c. 106, § 21. The certificate of the secretary of the commonwealth, under the present act, "shall be conclusive evidence of the existence of such corporation at the date of such certificate." Section 7. This does not seem to vary materially, so far as the present question is concerned, from "shall have the force and effect of a special charter, and be conclusive evidence of the organization and establishment of such corporation," in 1870, § 11, Pub.St. c. 106, § 21.

In the case which we have cited, it was said: "The legislature plainly intended *** that, in a case within the purview of the statute, the certificate should be conclusive, as to private persons, of the right to the corporate existence by the designated corporate name." And in the following paragraph: "The question whether the franchise was improperly obtained or improvidently granted may arise in proceedings for a forfeiture in behalf of the public, but is not open in proceedings by a private person under Pub.St. c. 186, § 17. 149 Mass. 440, 21 N.E. 876. See, also, page 439, 149 Mass. By the same principles, this bill could not be maintained if it were brought now. How far one name, not absolutely the same as another, resembles it, is a matter of degree; and whether one is so like the other as to be liable to be mistaken for it is a matter of judgment, not admitting of exact measurement. If the judgment of the commissioner is ever conclusive, we cannot go behind it simply because we think it very plain that he made a mistake.

The plaintiff got no better standing by seeking to anticipate the action of the statutory tribunal. The case is not like those where a court of equity enjoins parties from proceeding with an action at law. That is done to enforce some equitable...