Knights of Maccabees of World v. Searle

• Decision Date: 20 December 1905
• Docket Number: 14,292
• Citation: 106 N.W. 448,75 Neb. 285
• Parties: KNIGHTS OF THE MACCABEES OF THE WORLD, APPELLEE, v. EDWIN M. SEARLE, JR., APPELLANT, ET AL
• Court: Nebraska Supreme Court

106 N.W. 448

75 Neb. 285

KNIGHTS OF THE MACCABEES OF THE WORLD, APPELLEE, v. EDWIN M. SEARLE, JR., APPELLANT, ET AL

No. 14,292

Supreme Court of Nebraska

December 20, 1905

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Norris Brown, Attorney General, William T. Thompson, W. H. Thompson and J. C. Hartigan, for appellant.

Hainer & Smith, contra.

OPINION

SEDGWICK, J.

The district court enjoined the auditor "from issuing a permit (to plaintiff) to use the word 'Maccabees' in the formation of its corporate name, and enjoined all other defendants from using the word 'Maccabees' in the formation of the corporate name of the new or proposed society for which they have been designated as officers." The plaintiff is a Michigan corporation, and is authorized to do business in this state as a fraternal beneficial association. Its corporate name is "The Knights of the Maccabees of the World." It has been doing business under that name for more than 20 years, and was doing business in this state before the adoption of the present law regulating beneficiary associations, and has continued under the operation of that law. The auditor, at the request of the other defendants, was about to issue certificate of organization to a fraternal beneficial association which was being organized by the other defendants under the name of the "Western Maccabees." The question was presented by a general demurrer to the petition for injunction, which was overruled, and this is the ruling complained of. The correctness of this ruling depends mainly upon two questions. First: Can the action of the auditor in issuing or refusing this certificate be controlled by the courts under any circumstances? Second: Is the name which has been adopted by the other defendants seeking this license the same name as the name of this plaintiff, or does it so nearly resemble the plaintiff's title as to have a tendency to mislead the public?

1. This court has frequently approved the general doctrine in 2 High Injunction (4th ed.), sec. 1,240: "No principal of equity jurisprudence is better established than that courts of equity will not sit in review of the proceedings of subordinate political or municipal tribunals and that where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in the absence of fraud, be disturbed." The rule is stated by Mr. Chief Justice Fuller, as follows:

"The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty, involving the exercise of judgment or discretion." United States v. Blaine, 139 U.S. 306, 11 S.Ct. 607, 35 L.Ed. 183.

In State v. Searle, 74 Neb. 486, 105 N.W. 284, which involved a construction of the provisions of section 100 chapter 43, Compiled Statutes 1903 (Ann. St. 6492), it was held that, in the matter of granting the annual license provided for in that section, the auditor, while clothed with a large discretion, was not given unlimited and arbitrary power to refuse a license. This was thought to be the policy of our statute, plainly derived from a...