Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine v. Michaux

Decision Date03 June 1929
Docket NumberNo. 7,7
Citation49 S.Ct. 485,279 U.S. 737,73 L.Ed. 931
PartiesANCIENT EGYPTIAN ARABIC ORDER OF NOBLES OF THE MYSTIC SHRINE et al. v. MICHAUX et al
CourtU.S. Supreme Court

Messrs. Harold S. Davis, of Boston, Mass., James E. White and Samuel A. T. Watkins, both of Chicago, Ill., and Moorfield Storey, of Boston, Mass., for petitioners.

Mr. Claude Pollard, of Austin, Tex., for respondents.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This case presents a controversy between two fraternal orders, called 'Nobles of the Mystic Shrine,' one having white and the other negro members. A short reference to the origin and history of these orders will conduce to an accurate appreciation of the controversy.

From early times there have been two distinct Masonic fraternities in the United States, one confined to white men and the other to negroes. Each has had its local lodges, grand lodges, and Supreme Lodge, and also several component bodies, including Knights Templar and Scottish Rite consistories. Both have existed in the same territory and have had similar names, rituals, and emblems, and yet have been independent and without any inter- relation. The white fraternity's existence in this country reaches back to early colonial times. The negro fraternity was organized in Boston in 1784, and afterwards was extended to other sections.

The orders called 'Nobles of the Mystic Shrine' are relatively modern, originated in the United States, and are outgrowths of the Masonic fraternities just described. They were founded by Masons, and their membership is restricted to Masons-white in one case and negro in the other-who have become Knights Templars or have received the thirty-second degree in a Scottish Rite consistory. The white Masons were the first to establish an order of Nobles of the Mystic Shrine. They organized one in New York in 1872 for fraternal and charitable purposes. The order grew rapidly, and soon came to have local lodges, called temples, in most of the states, and also to have a national governing body called its Imperial Council. The negro Masons imitatively organized a like order for like purposes in Chicago in 1893. It also grew, although not so rapidly as the white order, and came to have many local temples in other sections of the country and to have a national governing body called its Imperial Council. The constitution, emblems and regalia of the negro order, as also the titles given to the officers of its temples and council, were all adopted in imitation of those of the white order. Another feature imitatively copied was a purely fanciful calim, once put forth by the white order and afterwards discredited, to the effect that that order was an authorized extension of an ancient and illustrious order established centuries ago in Mohammedan countries.

Each of the orders, after becoming well organized, made it a practice to hold periodic national meetings attended with public parades and other features tending to bring attention to the order and to advance its extension. And, aside from such activities, each publicly engaged in commendable charitable work. The white order, by reason of its greater membership and the larger resources of its members, was able to carry that work further than the negro order could, but the contributions and efforts of the latter in that field were both helpful and substantial.

The white order always has been a voluntary unincorporated association. In 1895 the New York Legislature passed a special act purporting to incorporate it, but the proffered incorporation was rejected. In 1893 the negro order was incorporated under the laws of Illinois, but that incorporation was abandoned; and in 1901 the order was incorporated as a fraternal and charitable association under the Act of Congress of May 5, 1870, providing for the creation of corporations in the District of Columbia, c. 80, § 3, 16 Stat. 98, 101.

The name adopted by the white order is 'Ancient Arabic Order of the Nobles of the Mystic Shrine for North America,' and that adopted by the negro order, and under which it was incorporated, is 'Ancient Egyptian Arabic Order of the Nobles of the Mystic Shrine of North and South America and its Jurisdictions.'

Prior to 1918, both orders established local temples in the state of Texas-in some instances in the same cities. Among the temples of the white order were one in Dallas established in 1887, one in El Paso established in 1907, and one in Houston established in 1915. Among those of the negro order were one in Dallas established in 1894, one in El Paso established in 1902, and one in Houston established in 1917.

The present suit was begun in 1918 in a state court of Texas. Originally it was brought by members of the local temple of the white order in Houston against members of the local temple of the negro order in that city to enjoin the latter from using any imitation of the name, constitution, titles, emblems, and regalia of the former. But through the voluntary intervention of other parties and a voluntary enlargement of the original pleadings, all with the court's leave, the suit was broadened into one between the two national orders, wherein the white order sought an injunction against the negro order restraining and preventing the latter, its lodges, officers, and members, 'throughout the state of Texas and the entire United States,' from further using the name under which it was acting, from designating its local lodges as 'temples,' from designating its members as 'Nobles' or 'Shriners,' from giving the officers of its lodges and council the titles of like officers in the white order, from using a constitution, emblems, and regalia like those of the white order, and from organizing or instituting lodges in imitation of those of that order.

The answer of the negro order may be summarized as denying that the white order had acquired any exclusive or superior right to use the name, constitution designations, titles, emblems, and regalia before mentioned or any of them; denying that the negro order's use of such name, constitution, designations, titles, emblems, and regalia was with any wrongful or fraudulent purpose, or was other than the exercise of a right belonging to that order as a lawfully constituted fraternal and charitable association; setting up the negro order's incorporation in 1901 under the Act of Congress of May 5, 1870, and asserting that, in virtue of that act and such incorporation, the order became entitled, if not theretofore entitled, to use the name which it had been and was still using, to adopt and have a constitution, to establish and have local lodges, to select and use appropriate emblems and regalia, and to do other things properly incident to the maintenance of a fraternal and charitable order; alleging that its acts and practices were all within its rights under that incorporation; asserting that there had been and was no competition between the two orders and that the white order drew its members wholly from the white Masonic fraternity while the negro order drew its members wholly from the negro Masonic fraternity; and setting up that the white order, by reason of its laches and its acquiescence in the acts and practices of the negro order, was without right to an injunction or other equitable relief.

On a trial of the issues, the court made special findings of fact, stated its conclusions of law, and entered a decree awarding to the white order all of the relief sought. The findings of fact included one to the effect that the imitative acts and practices of the negro order constituted 'a fraudulent deception' injurious to the white order, and another to the effect that the white order had not acquiesced in those acts and practices and was not chargeable with laches in not taking earlier steps to stop them. The conclusions of law and the decree are copied in the margin.1 The decree was affirmed by the Court of Civil Ap- peals, Burrell v. Michaux, 273 S. W. 874, and by the Supreme Court of the state, 286 S. W. 176. The negro order then petitioned this court for a review upon writ of certiorari, and the petition was granted.

In the state appellate courts, the negro order relied on the Act of Congress of May 5, 1870, and its incorporation thereunder, just as it had done in the trial court, and also insisted that the decree against it was not in accord with the decision of this court in Creswill v. Knights of Pythias, 225 U. S. 246, 32 S. Ct. 822, 56 L. Ed. 1074, where like privileges asserted under that act of Congress by a fraternal and benevolent association incorporated thereunder were involved.

The right thus specially set up in the state court is a federal right. Whether it was denied or not given due recognition by the challenged decree, as affirmed, is a question on which the defeated claimants are entitled to invoke the judgment of this court, as is done in their petition for certiorari. And it is our province to inquire, not only whether the right was denied in direct terms, but also whether it was denied in substance and effect by interposing a nonfederal ground of decision having no fair support. Creswill v. Knights of Pythias, 225 U. S. 246, 258, 261, 32 S. Ct. 822, 56 L. Ed. 1074; Ward v. Love County, 253 U. S. 17, 22, 40 S. Ct. 419, 64 L. Ed. 751; Davis v. Wechsler, 263 U. S. 22, 24, 44 S. Ct. 13, 68 L. Ed. 143; Railroad Commission v. Eastern Texas R. R. Co., 264 U. S. 79, 86, 44 S. Ct. 247, 68 L. Ed. 569; New York Central R. R. Co. v. New York & Pennsylvania Co., 271 U. S. 124, 126, 46 S. Ct. 447, 70 L. Ed. 865.

The record and the opinions set forth therein make it apparent...

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