Burrell v. Michaux

• Decision Date: 23 June 1926
• Docket Number: (No. 608-4442.)
• Citation: 286 S.W. 176
• Parties: BURRELL et al. v. MICHAUX et al.
• Court: Texas Supreme Court

286 S.W. 176

BURRELL et al. v. MICHAUX et al.

(No. 608-4442.)

Commission of Appeals of Texas, Section B.

June 23, 1926.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by D. W. Michaux and others, as officers of the Arabia Temple of the Ancient Arabic Order of Nobles of the Mystic Shrine for North America, against A. H. Burrell and others, as officers and members of the Doric Temple of the Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine of North and South America and its Jurisdictions, in which the national organizations of the respective shrines intervened. Judgment against defendants was affirmed by the Court of Civil Appeals (273 S. W. 874), and they bring error. Judgments affirmed.

Findings of fact (in part):

"V. On the 26th day of September, A. D. 1872, in the city of New York, and state of New York, Walter M. Fleming, and others, organized a voluntary, fraternal order, which they named `Ancient Arabic Order of The Nobles of the Mystic Shrine,' which name was afterwards changed to `Ancient Arabic Order, Nobles of the Mystic Shrine for North America,' under which last name it is now in existence and has been for many years; that the order has since the 26th day of September, 1872, been the same in all respects except the change of name as here indicated; that said order was organized by Masons of the Ancient and Accepted Scottish Rite of the Thirty-Second Degree or higher, or of Masons who were Knights Templar; that the subordinate bodies of said order were designated as temples, the first organized of which was Gotham Temple, the name of which has since been changed to Mecca Temple, which now exists as such temple and has since its origin so existed, located in the city of New York, and state of New York; thereafter in 1873 the members of said order with the permission of the original organizers created Gennessee Temple No. 2, which said last temple has been continuously in existence and is now in existence under the name of Damascus Temple; that said order has continuously existed and been in active and progressive operation since the 26th day of September, 1872, since which time it has organized throughout North America and within the islands under its jurisdiction 156 temples, each and all of which are under its jurisdiction and have a membership of approximately 600,000; that said order, and each and all of its subordinate temples, have been continuously active and in existence throughout North America and the island under its jurisdiction continuously since the 26th day of September, 1872, being actively engaged in fraternal and charitable work and the accumulation of property for such purposes during all of said time, amounting to the sum of hundreds of thousands of dollars."

"X. That at the organization of said order it adopted a certain constitution and laws, and adopted as its emblem the crescent of silver, gold or coral, with a band of gold and a ring at its base and center, hung arch downward, the gold band to be decorated with a Sphinx Head on one side, a Pyramid with the Urn on the other, the original jewel or emblem being formed of two nails from a tiger's paw, united at their bases with a gold band, which said constitution and laws and said emblems, etc., were adopted for said Imperial Council immediately after its formation as the constitution, laws, and emblems of said order, together with the following emblems and jewels, to wit: Crescent, Pyramid, Sphinx Head, Panther-bodied Female Sphinx, the Urn, Sun, Moon, and Stars. The Red Turkish Fez was adopted as the universal style of head covering for the members of the order, the Crescent when worn as a pin or jewel is frequently combined with a scimitar between its points, which is worn generally by the members of said order; the constitution and laws with immaterial amendments, and the said jewels and emblems, and head covering have been strictly adhered to by said order and by said Imperial Council and by the temples and the members thereof since the organization thereof, and said order was the first order or organization or corporation in North America or elsewhere to adopt and use said constitution, laws, emblems and jewels; that said order at its organization, and the Imperial Council, immediately after its formation, adopted for said order certain distinctive insignia and paraphernalia, and said order and said Imperial Council, the temples, and members thereof strictly adhered to same since the original organization of said order; and said order was the first in North America or elsewhere to adopt and use said distinctive insignia and paraphernalia, etc.

"XI. That said insignia, paraphernalia, jewels and emblems, and head covering, constitution and laws have always been distinctive of said `Ancient Arabic Order, Nobles of the Mystic Shrine for North America.'

"XII. That said order at its organization and said Imperial Council immediately after its organization adopted certain titles of officers of said Imperial Council and of its subordinate temples, as follows: For its Imperial Council: Imperial Potentate; Imperial Deputy Potentate; Imperial Chief Rabban; Imperial Assistant Chief Rabban; Imperial High Priest and Prophet; Imperial Treasurer; Imperial Recorder; Imperial Oriental Guide; Imperial First Ceremonial Master; Imperial Second Ceremonial Master; Imperial Marshal; Imperial Captain of the Guards; Imperial Outer Guard. And for its subordinate temples, the following, viz.: Illustrious Potentate; Chief Rabban; Assistant Rabban; High Priest and Prophet; Oriental Guide; Treasurer; Recorder; First Ceremonial Master; Second Ceremonial Master; Director; Marshal; Captain of the Guard; Outer Guard. That the distinctive name in popular parlance of said order has since its organization and continuously since been `the Shrine,' and the distinctive name of the members of said order has continuously since its organization been popularly known as `Shriners or Nobles.'

"XIII. That said order, `Ancient Arabic Order, Nobles of the Mystic Shrine for North America,' and its predecessors in name, through continuous activities since the original organization thereof on September 26, 1872, was the first order, either corporate or otherwise, to adopt and use said name and the distinctive words therein in the name of a fraternal order throughout North America and the islands under the jurisdiction of the Imperial Council of said order, and the first in time to adopt and use the distinctive constitution and laws, and the distinctive emblems, insignia, regalia, paraphernalia, badges, head coverings, etc., and the first in time to adopt and use the distinctive names of officers of its Imperial Council, and of its subordinate temples, and the first in time to adopt and use the distinctive name of `Temple' for its subordinate organizations, and the first in time to adopt and use the popular name of `Shrine' for its subordinate organizations, and the first in time to adopt and use the popular name `Shriners' and `Nobles' for its members in North America and the islands under the jurisdiction of its Imperial Council, and have continuously since the original organization thereof adopted and used such distinctive constitution and laws, emblems, insignia, paraphernalia, regalia, jewels, badges, names of officers, names of subordinate temples, and names of members throughout North America and the islands under the jurisdiction of its Imperial Council; that no such order ever existed in Egypt, Arabia, or in any other European country.

"XIV. The continued existence of said order and of its Imperial Council, and of its subordinate temples, and the continued integrity of its membership depended entirely upon the good will and esteem in which they are held by the general public, as well as by the Masonic bodies from which the membership is drawn, and they depend for support upon initiation fees and dues paid by members, and any use of said constitution and laws, or distinctive names, or distinctive emblems, insignia, regalia, paraphernalia, jewels, badges, head covering, names of officers, titles of officers, names of subordinate temples, and names of members by any other fraternal organization, corporate or otherwise, is a continuing wrong and injury to said order and the membership thereof, and will cause irreparable damage and detriment to said order, both in popular esteem, and in the continued existence thereof and in the growth thereof, and in the fraternal and charitable work in which it is engaged, as well as irreparable damage to its properties, for relief against which no adequate remedy at law exists.

"XV. On the 1st day of June, 1893, one Rofelt Pasha, purporting to be of Mecca, Arabia, initiated at Chicago, Ill., into an order which he designated as the `Order of Mystic Shrine' certain colored Masons, and designated said order as `Imperial Grand Council of the Ancient Arabic Order, Nobles of the Mystic Shrine of Free Masonry of North and South America'; that said Rofelt Pasha, and his successors, including the defendants, and the defendant-intervener herein, appropriated unto themselves a constitution and laws, the insignia, paraphernalia, emblems, jewels, pins, head covering, titles of officers, names of subordinate organizations, and popular names of subordinate organizations, and names of members, which had theretofore been used and adopted and had become distinctive of the plaintiffs and plaintiff-intervener, and the other plaintiff-interveners herein, for more than 20 years; and thereafter several subordinate temples of said order withdrew from said organization and in December, 1900, organized at Philadelphia, Pa., the defendant-intervener, under the name of `Ancient Egyptian Arabic Order, Nobles of the Mystic Shrine for North and South America and its jurisdictions,' which last-named order was incorporated under the Revised Statutes of the United States, and has continuously existed, and has...