State v. Hinkle

• Decision Date: 09 May 1922
• Docket Number: 17141.
• Citation: 120 Wash. 85,206 P. 942
• Court: Washington Supreme Court
• Parties: STATE ex rel. BELLINGHAM PUB. CO. v. HINKLE, Secretary of State.

206 P. 942

120 Wash. 85

STATE ex rel. BELLINGHAM PUB. CO. v. HINKLE, Secretary of State.

No. 17141.

Supreme Court of Washington

May 9, 1922

Department 1.

Original proceedings in mandamus by the State, on relation of the Bellingham Publishing Company, a corporation, against J Grant Hinkle, as Secretary of State, to compel the respondent to strike from the records of his office the articles of incorporation and the certificate thereon of the Bellingham American Publishing Company. Alternative writ quashed, and permanent writ denied.

Fullerton J., dissenting.

Newman, Howard & Kendall, of Bellingham, for petitioner.

Lindsay L. Thompson, of Olympia, and C. G. Jeffers, of Ephrata, for respondent.

Pemberton & Sampley of Bellingham, amicus curiae.

TOLMAN J.

This is an original proceeding by which petitioner seeks a writ of mandate to compel respondent, as secretary of state, to strike from the records of his office the filing of the articles of incorporation, and the certificate issued on such filing, to the Bellingham American Publishing Company.

Petitioner alleges that it has duly existed as a corporation under the laws of this state under its present name since December 11 1911; that it was incorporated to succeed the Fairhaven Publishing Company and the American Printing Company (both Washington corporations); that it published for some time thereafter a daily newspaper known as the American, and a Sunday newspaper known as the Sunday American Reveille, and after changing the names of its publications, it carried, and still carries in its present publications, subheads and subtitles in which the word 'American' appears, and which indicate that the present publications are all successors to those above mentioned. It is further alleged that respondent, about December 31, 1921, accepted for filing articles of incorporation of a corporation to be known as the 'Bellingham American Publishing Company,' with its principal place of business at Bellingham, Wash. (the place of business and the habitat of petitioner), and whose purpose was and is to publish at Bellingham a daily newspaper to be known as the Evening American, and a Sunday newspaper to be known as the Sunday American, and afterwards issued to it a certificate of incorporation; and finally it is alleged that the name of said new corporation, Bellingham American Publishing Company, so nearly resembles the name of petitioner, Bellinham Publishing Company, as to be misleading, and that respondent acted arbitrarily and abused his discretion in accepting and filing these articles.

It is at once obvious, and indeed is admitted by petitioner, that neither the secretary of state nor this court was or can now be in any manner concerned with the names of the various publications referred to, past, present or future. That subject is one upon which petitioner may invoke the aid of equity in an action in the proper superior court, in which all concerned may be made parties. State ex rel. Progressive Motion Picture Co. v. Howell, 96 Wash. 163, 164 P. 917. We are now concerned only with the names of the two corporations and the question as to their similarity. The statute upon this subject (Rem. Code, section 3680) reads:

'Private corporations may be formed in the manner prescribed by the laws of this state governing corporations for any purpose for which individuals may lawfully associate. No corporation shall take the name of a corporation theretofore organized under the laws of this state, nor of any foreign corporation having complied with the laws of this state, nor one so nearly resembling the name of such other corporation as to be misleading. The secretary of state shall refuse to file said articles of incorporation of any association or corporation violating the provisions of this section.'

The respondent, having in good faith, so far as here appears exercised his judgment and discretion, and thereby determined that the names do not so nearly resemble each other as to be misleading, the primary question is, May his action be now reviewed by the courts? The general rule is, we think, that when the law vests in a public officer the right to use discretion, the courts will not interfere unless it appears that the action taken was arbitrary or capricious. In...