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225 U.S.

Opinion of the Court.

answers to the questions, charging each to be not only contrary to the evidence, but contrary to the charge of the court, and in addition error was alleged in the charge as given and to the failure to instruct the jury as pointed out in some of the specifications of error. The omission to specifically instruct the jury that the defendants claimed

and from using any name, flags, emblems, and insignia that are substantially identical with or a colorable imitation of the name, flags, emblems, or insignia of petitioners, the Supreme Lodge Knights of Pythias and the Grand Lodge Knights of Pythias of Georgia, in any insurance and military branches of said petitioners, in connection with any society or corporation of which defendants are officers or members. (2) In order that the voluntary organization of which the defendants are officers and members may have a reasonable time in which to select and adopt some other name and make such changes in the laws as may be necessary in obedience to this decree, and not hereby disorganize said organization which defendants are members of, or stop its said association from the prosecution of the work in which it is engaged:

It is hereby adjudged and decreed: That the injunction decreed in subsections B and C, paragraph one hereof, shall be in abeyance and no penalty shall be visited upon the defendants, their associates and successors, for disobedience thereof until the first day of June, 1909. And that on and after said first day of June, 1909, this suspension of said injunction shall cease and determine, and said injunction shall be of full and final force and effect, perpetually after said date, and the defendants and each of them, their associates and successors are and shall be subject to all the pains and penalties provided for any disobedience of said injunction.

(3) That this decree shall have the force and effect of the State's writ of injunction, without issuance of such writ; provided. however, that the writ of injunction, according to the terms of this decree, shall issue out of this court, and be further served upon the defendants and their associates and successors, at any time on motion of petitioners. (4) That the petitioners have and recover of the defendants all of the costs in this behalf incurred, to wit: dollars, to be taxed by the

clerk of this court.

In open court, this tenth of June, 1908.

J. T. PENDLETON,

VOL. CCXXV-17

Judge C. S. A. C.

Opinion of the Court.

225 U.S.

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a right to their name under a charter from the District of Columbia by virtue of an act of Congress and the answers of the jury to certain of the questions were alleged to violate defendants' rights under the charter and to be repugnant to the due faith and credit clause of the Constitution of the United States, and the decree was alleged also to constitute a violation of the general incorporation act under which the order of which defendants were a part had been incorporated. The motion for a new trial was overruled. A bill of exceptions was soon afterwards allowed, which was certified to contain "all the evidence" and the material portions of the record. The case was then taken by a writ of error to the Supreme Court of the State, where the judgment was affirmed. 133 Georgia, 837. This writ of error was then prosecuted.

In the trial court, in various forms, plaintiffs in error, defendants below, invoked the right to the use of its corporate name and the incidental right to the designation Knights of Pythias and the use of insignia, emblems, etc., appropriate to the order. As this right or privilege was claimed in virtue of the authority to incorporate conferred by the general incorporation act of May 5, 1870, enacted by Congress, it constituted a right or privilege claimed. under an authority exercised under the United States which, being denied by the state court, is reviewable here by virtue of the provisions of § 237 of the new Judicial Code, § 709, Rev. Stat. Dupasseur v. Rochereau, 21 Wall. 130; Embry v. Palmer, 107 U. S. 3; Ferris v. Frohman, 223 U. S. 424, 431, and cases cited. The fact that corporations created by the general law of 1870 and the special act of Congress of 1894 heretofore referred to derived their rights and powers under a law of the United States is recognized in the following cases which were removed from state courts: Supreme Lodge Knights of Pythias v. Kalinski, 163 U. S. 289; Same v. Withers, 177 U. S. 260, and Same v. Beck, 181 U. S. 49.

225 U.S.

Opinion of the Court.

Whether or not the defendants below and their successors were entitled to prosecute in the state court the application to be made a domestic corporation of Georgia is, in our opinion, plainly a question non-federal in character, and we therefore pass its consideration. The question, however, whether the right or privilege arising from the authority exercised under legislation of Congress was invaded by the decree complained of so far as it forbade the use of the corporate name or a designation containing the distinctive words Knights of Pythias and the use of the emblems and insignia of such order being within our competency to review, we come to the consideration of the question whether the asserted right or privilege was properly denied.

It is manifest from the record that the existence within the State of Georgia of two bodies of Knights of Pythias controlled by corporations of the District of Columbia and the authority exerted over the membership in that State by the governing body of each order was not contrary to any state statute and the Supreme Court of Georgia in determining the right to relief applied what it conceived to be the applicable principles of general law. Speaking in a general sense, it is true to say that the Supreme Court of Georgia deemed the case before it to be controlled by the principles of law applicable to trademarks and trade-names, and in substance held, a. That an association whose primary object was fraternal or benevolent, first appropriating and using an arbitrary or fanciful name acquires an exclusive right to the same; b. That a subsequent unauthorized use by others of such name or a colorable imitation thereof would be unlawful; c. That in the absence of laches if as a result of such wrongful use injury was occasioned to the rightful owner by the unlawful appropriation and use of the name, equity would afford relief. Coming to apply these principles the court held, first, that there had been a lawful appro

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priation of the name by the plaintiff corporation, and an unauthorized and wrongful use thereof by the defendants, indeed, that such use was made "with a fraudulent purpose and design;" second, that the unlawful appropriation had inflicted injury upon the property rights of the lawful appropriator. On this subject, the court said (p. 844):

"The plaintiffs' order, while primarily fraternal and benevolent, has certain property and business attributes and activities, including the acquiring and ownership of large amounts of property and the conducting of a department of insurance protection. Under the evidence, the element of injury is sufficiently shown."

The conclusion of the court that there had been as a matter of fact no such laches as should prevent a court of equity from affording relief was thus stated (p. 850):

"Taking into consideration that the subject of controversy in this case is in the nature of a trade-name, and that the contest is between two secret societies whose relations to each other, during the period from the appropriation of the name by one to the institution of the suit for injunction by the other, was not the usual relation that one person ordinarily sustains to another, we cannot say that the finding of the jury that the plaintiffs had not acquiesced in the use of their name by the defendants is not supported by the evidence. The suit was filed promptly after the defendants came out into the open and by petition duly published asked the court to give legal sanction to their use of the plaintiffs' name."

We do not stop to consider whether the court was right under principles of general law in applying to organizations like those here involved the rules applicable to trademarks and trade-names and unfair competition in trade, a subject as to which there is conflict in the decisions, because under the view we take of the case we propose, for the sake of argument only, to indulge in the hypothesis

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that the conception which the court entertained on the subject was correct. It is indisputable that the court was clearly right, as a matter of law, in holding that a court of equity in any event would not afford relief where there had been such laches as would cause it to be inequitable to do so. Saxlehner v. Eisner & M. Co., 179 U. S. 19, 35. The question then is, Can the decree of the court be maintained consistently with the doctrine of laches which the court expounded and which we have accepted as correct beyond all controversy? As the inquiry which we thus state rests upon the premise that all the propositions of law applied by the court are to be taken as correct, it follows that there is no possibility of deciding there was material error unless it is to be found in the application which the court made of the principle of law which it applied to the facts established by the evidence, all of which is in the record in connection with the findings made by the jury. While it is true that upon a writ of error to a state court we do not review findings of fact, nevertheless two propositions are as well settled as the rule itself, as follows: (a) that where a Federal right has been denied as the result of a finding of fact which it is contended there was no evidence whatever to support and the evidence is in the record the resulting question of law is open for decision; and (b) that where a conclusion of law as to a Federal right and finding of fact are so intermingled as to cause it to be essentially necessary for the purpose of passing upon the Federal question to analyze and dissect the facts, to the extent necessary to do so the power exists as a necessary incident to a decision upon the claim of denial of the Federal right. Kansas City So. Ry. Co. v. Albers Comm. Co., 223 U. S. 573, 591; Cedar Rapids Gas Co. v. Cedar Rapids, Ib. 655, 668; State of Washington ex rel. v. Fairchild, 224 U. S. 510. The contentions here made bring this case under the first category, since the insistence here is that there was not any evidence

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