International Free and Accepted Modern Masons v. Most Worshipful Prince Hall Grand Lodge, Free and Accepted Masons of Ky.

• Decision Date: 14 November 1958
• Parties: , 119 U.S.P.Q. 393 INTERNATIONAL FREE AND ACCEPTED MODERN MASONS, a Delaware Corporation, et al., Appellants, v. MOST WORSHIPFUL PRINCE HALL GRAND LODGE, FREE & ACCEPTED MASONS OF KENTUCKY, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 46

318 S.W.2d 46

76 A.L.R.2d 1386, 119 U.S.P.Q. 393

INTERNATIONAL FREE AND ACCEPTED MODERN MASONS, a Delaware

Corporation, et al., Appellants, v. MOST WORSHIPFUL PRINCE HALL GRAND LODGE, FREE & ACCEPTED

MASONS OF KENTUCKY, et al., Appellees.

Court of Appeals of Kentucky.

Nov. 14, 1958.

James A. Crumlin, Louisville, Jesse E. Williams, Detroit, Mich., for appellants.

Henry J. Tilford, Charles W. Dobbins, Louisville, for appellees.

STANLEY, Commissioner.

On the complaint of the appellees, Most Worshipful Prince Hall Grand Lodge Free & Accepted Masons of Kentucky, the trial court enjoined the appellant, International Free and Accepted Modern Masons, and its representatives by name and all others

'(1) From establishing or conducting lodges of Masons or auxiliaries thereof within the State of Kentucky wherein the words 'Free and Accepted Masons,' or the words 'Masonic Lodge,' or the word 'Mason' or a colorable imitation thereof are used in any manner whatsoever;

'(2) Within the State of Kentucky, from holding forth or stating that the defendant, International Free and Accepted Modern Masons, is a grand lodge of Free and Accepted Masons and from using or employing rituals, ceremonies, names, insignia, emblems, badges, symbols, signs, paraphernalia, or designations of an organization of Masons; and from using or attempting to use any of the secret work or formulas of the plaintiff, Most Worshipful Prince Hall Grand Lodge Free and Accepted Masons of Kentucky, or the subordinate lodges chartered and established under its jurisdiction, and from using or displaying any insignia, emblems, badges, symbols, signs and paraphernalia of the plaintiff Grand Lodge or the subordinate lodges established and chartered by it.'

For convenience and brevity, the appellants will hereinafter be referred to as 'International Masons' and the appellees as 'Prince Hall Masons.'

The case has been and is to be decided under the doctrine of unfair competition, a term which through the development of the law has, in many applications, become a misnomer. The application here is of a fundamental principle of protection from misappropriation or misrepresentation through unprivileged imitation of a name and of emblems and insignia. The right of a fraternal order to this protection is well recognized. Creswill v. Grand Lodge Knights of Pythias, 225 U.S. 246, 32 S.Ct. 822, 56 L.Ed. 1074; Grand Lodge I. B. & P. O. Elks v. Grand Lodge I. B. P. O. Elks of World, 4 Cir., 50 F.2d 860; Nims, Unfair Competition and Trade-Marks (4th Ed.), § 86; 10 C.J.S. Beneficial Associations § 12. We have a statute imposing a penalty upon any person who willfully wears the badge of Masons or other named organizations without being entitled to wear it. KRS 434.060(2). Here, priority of origin and incorporation in Kentucky and in territorial use, as well as confusion and misrepresentation, are the bases of the exclusive right claimed and adjudged to belong to the appellees, Prince Hall Masons.

As is well known, the order of Free and Accepted Masons is an ancient and honorable secret fraternity. Its origin is lost in antiquity. The Masonic legend is that it began with the craftsmen at the building of King Solomon's Temple. Documentary rolls and other records, still preserved, of the Fourteenth Century and later centuries prove the establishment and continuity of Masonic lodges at least from such times down to the establishment of the premier Grand Lodge of England in 1717. From that time previously separate lodges became subordinate affiliates of Grand Lodges. All regular grand and subordinate lodges throughout America, directly or indirectly, have sprung from this mother grand lodge. ¹

A brief history of Freemasonry among colored people in America, as shown in this record and by historical references and in several judicial opinions, seems appropriate.

Prince Hall, a free Negro, a native of Barbados, West Indies, became a worthy resident of Massachusetts. He knocked and the door of Masonry was opened to him by a British Military Lodge in Boston in the year 1775. He was the first man of African descent to become a Master Mason in America. Hall became a Revolutionary War patriot, receiving recognition from General Washington and other leaders. After the war, Hall and his brethren were refused a charter by the Provincial Grand Lodge of Massachusetts because of their race. Upon their application, the Grand Lodge of England, 'under authority of His Royal Highness, Frederick, Duke of Cumberland, Grand Master of the Most Ancient and Honorable Society of Free and Accepted Ancient Masons,' granted them a charter on September 29, 1784, under the name of African Lodge No. 459, to be opened in Boston. That was done in May, 1787. Later, African Lodge No. 459 declared itself to be a Grand Lodge with jurisdiction throughout the United States, and the Grand Lodge of England granted a patent or provincial powers to the African Lodge as such. After the death of Prince Hall in 1807, the colored Masonic grand lodges changed their names in his honor and many succeeding lodges have adopted it.

As time went along, Prince Hall Grand and subordinate lodges of colored Masons were chartered and organized throughout the United States, Canada and other countries, all of them springing from African Lodge No. 459. These historical facts are more or less confirmed by several judicial opinions. See, Prince Hall Grand Lodge of F. & A. Masons v. Most Worshipful King Solomon Grand Lodge, A. F. & M. (Colored) 62 N.M. 255, 308 P.2d 581; Most Worshipful Widows' Sons Grand Lodge of Ancient F. & A. Colored Masons of Pennsylvania v. Most Worshipful Prince Hall Grand Lodge of F. & A. Masons of Pennsylvania, 160 Pa.Super. 595, 52 A.2d 333; Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons, of Georgia v. Supreme Grand Lodge, Modern Free & Accepted Colored Masons of the World, D.C., 105 F.Supp. 315.

According to the record in this case and 'Official History of Freemasonry among Colored People in North America,' by Wm. G. Grimshaw,

'In the year 1850 Brother R. H. Greaves, Deputy Grand Master of the Grand Lodge of the State of Ohio and its jurisdiction thereunto belonging, warranted and established Mount Moriah Lodge No. 6, F. & A. M., now No. 1, located in the City of Louisville, Ky. This was the first Lodge organized in the State. Owing to the fact that this organization occurred during slavery times, none but free men were made Masons.'

The individual appellees have joined in the prosecution of the present suit on behalf of all members of Mount Moriah Lodge No. 1, F. & A. M.

In 1867 Mount Moriah and two other lodges in Kentucky, which had also been chartered by the Ohio jurisdiction, established in accordance with the rules and practices of Freemasonry, 'The Grand Lodge of Free and Accepted Masons of Colored Men of the State of Kentucky.' It was incorporated in Kentucky on January 11, 1901, and by amendment of its articles of incorporation in January, 1951, changed its name to the present name of 'Most Worshipful Prince Hall Grand Lodge, F. & A. M. of Kentucky'. ² As such Grand Lodge, it has chartered ninety-two subordinate lodges in the State. The evidence submitted as the basis of the summary judgment herein is in full accord with the foregoing historical narrative.

Thus, the appellees trace their origin and continuity in Kentucky as legitimate Masonic bodies for a period of more than 107 years.

On the other side of the case, International Lodge, and the individual co-appellants have contended they are legitimate and honorable Freemasons and had a Kentucky source earlier than that of the appellees. International Lodge was incorporated in Delaware in the year 1950, but its headquarters are in Detroit, Michigan.

William Banks, who is 'The Supreme Grand Master' of International Lodge, deposed that his organization was in existence long before Prince Hall Lodge was organized in Kentucky or any other state; that International had its origin in England in 1716, while Prince Hall Lodge developed 'as a renegade from a legitimate lodge of Masons in Virginia.' No authority is given to sustain this broad statement, and it is denied of record.

In rebuttal, the affidavit of Harry A. Williamson, an outstanding historian of Negro Masonry, describes the lineage of Prince Hall Grand Lodge as above outlined. He adds that after the organization of the first Grand Lodge of Masonry in England in 1717, a new grand lodge was organized there in 1751, and in order to distinguish itself from the original, it adopted the name, 'The Ancient Grand Lodge of England' and referred to the older body as 'Modern.' The two lodges, however, merged in 1813, and the word 'Modern' disappeared from the legitimate masonry vocabulary. This is recounted in Most Worshipful Widows' Sons Grand Lodge of Ancient Free and Accepted Colored Masons of Pennsylvania v. Most Worshipful Prince Hall Grand Lodge of Free and Accepted Masons of Pennsylvania, 160 Pa.Super. 595, 52 A.2d 333. The reoccurrence of the use of the word 'Modern' was in 1950 with its adoption as part of International's name. Other Masonic historians deposed likewise.

As to the Kentucky lineage and operation, Banks recited in his affidavit that he was initated in St. John Masonic Lodge in 1925 in Geneva, Kentucky, (a hamlet in Henderson County) and his father had been initiated in the same lodge about the year 1901. His grandfather, Mitchell Banks, who was a mulatto, had some half-brothers who were white Masons; and since he could not be accepted in a white lodge, his half-brothers had helped him to set up a Negro Masonic lodge. ³ Banks left Kentucky at an undisclosed time and moved his membership from lodge to lodge. He states his 'lodge' at Geneva, Kentucky, 'ceased to operate,' but does not give the date. There is nothing in the record to show any connection of this reported organization and the appellants. In 1939 Banks, in protest of certain...