Supreme Lodge of the World Loyal Order of Moose v. Paramount Progressive Order of Moose

• Decision Date: 18 May 1929
• Parties: Supreme Lodge of the World, Loyal Order of Moose, et al., Appllants, v. Paramount Progressive Order of Moose et al
• Court: Missouri Supreme Court

17 S.W.2d 327

322 Mo. 866

Supreme Lodge of the World, Loyal Order of Moose, et al., Appllants, v. Paramount Progressive Order of Moose et al

Supreme Court of Missouri

May 18, 1929

Appeal from Circuit Court of City of St. Louls; Hon. H. A Hamilton, Judge.

Transferred to St. Louis Court of Appeals.

J. E Turner for appellants.

Earl M Pirkey for respondents.

OPINION

Frank, J.

Appellants and respondents are each incorporated as fraternal and benevolent organizations. Appellants were organized in 1888 and respondents in 1903. This is an injunction suit, and was brought in the circuit court by appellants against respondents seeking to enjoin respondents from further operating under the name "Paramount Progressive Order of Moose," or any similar name containing the word "Moose," and to enjoin respondents from using in the future the by-laws, rituals, application blanks, emblems, mottoes, etc., which they are now using, on the ground that the name under which they are now operating so nearly resembles the name adopted and in use by appellants, as to be a colorable imitation thereof, and is calculated to deceive persons with respect thereto, and that the by-laws, rituals, application blanks, emblems, mottoes, etc., now in use by respondents are practically identical with those in use by appellants.

At the conclusion of the trial in the circuit court, the court found the issues for defendants and dismissed plaintiffs' bill and plaintiffs appealed.

At the outset we are confronted with the question of jurisdiction. While neither party has raised this question, it is our duty to raise it sua sponte. If there is a constitutional question involved in the case, we have jurisdiction. Otherwise not.

Appellants allege in their motion for new trial that the finding and judgment of the trial court, and the effect and result thereof, conflicts with the preamble to the Constitution of Missouri, and conflicts with Sections one, four and twenty of Article Two of the Constitution of the State of Missouri, and Section one of Article Fourteen and the second paragraph of Article Six of the Constitution of the United States.

The mere fact that appellants have invoked certain constitutional provision does not necessarily mean that there is a constitutional question in the case. The case must involve a construction of some constitutional provision, before it can be said that there is such a question in the case. [Davidson v. Life Insurance Co., 151 Mo.App. 561, 567.] "Raising a constitutional question is not a mere matter of form; the question must really exist and if it does not exist it is not raised." [Canning & Packing Co. v. Evans, 238 Mo. 599, 605.] Where, as here, a party litigant invokes some constitutional provision, the court will look beyond the claim of such party, and determine from an examination of the record, whether or not there is any substance in such claim. [Lohmeyer v. Cordage Co., 214 Mo. 685, 691.]

What questions are necessarily involved in the instant case? Section 13272, Revised Statutes 1919, upon which appellants rely, provides as follows:

"Misuse of names of certain societies prohibited. -- No person, society, association or corporation shall assume, adopt or use the name of a military,...