Supreme Grand Lodge, Modern Free and Accepted Colored Masons of the World v. Most Worshipful Prince Hall Grand Lodge, Free and Accepted Masons, Jurisdiction of Georgia Brief for Respondent in Opposition

    IN  THE

^uprrmr (tart of %  luitrii Btutes
October Term, 1953 <*e»V.<A w»A q|x«.|S4

No. 636

Supreme Grand L odge, Modern F ree and A ccepted 
Colored Masons oe the W orld,

Petitioner,
v .

Most W orshipful Prince Hall Grand L odge, F ree and 
A ccepted Masons, J urisdiction of Georgia,

Respondent.

On Petition for a W rit of Certiorari to the United States 
Court of A ppeals for the F ifth Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

T hurgood Marshall, 
A mos T. H all,

Counsel for Respondent.

Supreme Printing Co., I nc,, 114 W orth Street, N. Y. 13, BE ekm an  3 - 2320



I N D E X

PAGE

Opinions B e low ...............................................................  1
Jurisdiction ..................................................................... 1
Questions Presented.......................................................  2
Statement ......................................................................... 2
Argument ......................................................................... 8

I—The petition fails to comply with Rule 38(2)
of this C o u rt ...................................................  8

II—The petition neither presents a federal ques- 
nor does it raise any important question of 
local law decided in a way probably in con­
flict with applicable local decisions............  8

Table of Cases

Ancient Egyptian Arbic Order N. M. S. v. Michaux,
279 U. S. 737 ............................................................. 8 fn.

Atlantic Paper Co. v. Jacksonville Paper Co., 184 Ga.
205, 190 S.’ E. 777 (1937) .......................................... 8,9,10

Creswill v. Grand Lodge, Knights of Pythias of
Georgia, 225 IT. S. 246 ...............................................  8 fn.

Creswill v. Grand Lodge Knights of Pythias of 
Georgia, 133 Ga. 837, 67 S. E. 188 (1910), rev. ot. 
gnds., 225 U. S. 246 ...................................................  10

Erie Railroad Co. v. Tompkins, 304 U. S. 6 4 .......... 8, 9
United States v. Rimer, 220 U. S. 547 .......................... 8

Other Authority

United States Supreme Court, Rule 38(2) 8



IN  THE

ĵ itjnrpmp Court of thr Unitrib Btutw
October Term, 1953 

No. 636

Supreme Grand L odge, Modern F ree and A ccepted 
Colored Masons of the W orld,

Petitioner,
v.

Most W orshipful Prince H all Grand L odge, F ree and 
A ccepted Masons, J urisdiction of Georgia,

Respondent.

On P etition for a W rit of Certiorari to the United States 
Court of A ppeals for the F ifth Circuit

-------------------------------------- o------------------------------------- -

BRIEF FOR RESPONDENT IN OPPOSITION

Opinions Below

The opinion of the District Court (R. 1170-1185) is 
reported at 105 F. Supp. 315. The opinion of the Court 
of Appeals for the Fifth Circuit and the dissenting opinion 
(R. 1226-1231) are reported at 209 F. 2d 156.

Jurisdiction

The jurisdictional requisites are adequately set forth 
in the petition.



2

Question Presented

No question is presented in the petition.

Statement

Respondent, a Georgia corporation, instituted this 
action on February 13, 1951, in the United States District 
Court for the Middle District of Georgia against petitioner, 
an Alabama corporation doing business in the State of 
Georgia. Federal jurisdiction is based upon diversity of 
citizenship and the requisite jurisdictional amount. The 
complaint alleged that petitioner was engaged in unfair 
competition with respondent (R. 2-11).

History of Petitioner and Respondent

Respondent’s evidence demonstrated that on March 6, 
1775, Prince Hall, a free Negro, and fourteen other free 
Negroes were initiated into the Masonic fraternity by 
British Army Lodge No. 441 (R. 53, 249). A  year later, 
just prior to the evacuation of Boston by the British, this 
Army Lodge gave to Prince Hall and his group of followers 
a license or permit to meet as a lodge of Masons in accord­
ance with the Masonic practice and custom of the day 
(R. 53-54). Under that license African Lodge No. 1 was 
organized in 1776 in the City of Boston with Prince Hall 
as its first master (R. 54). The intent of the Army Lodge 
was apparently that this permit should serve as temporary 
authority until a more formal warrant could be secured 
from the Grand Lodge of England (R. 56). After the 
Revolutionary War, Prince Hall requested the Grand 
Lodge of England to issue a warrant for this lodge. On 
September 29, 1784, the Grand Lodge of England war­
ranted this group as African Lodge No. 459 under the 
authority of the Grand Master of England (R. 57, 1075). 
Prince Hall was named the master of this lodge (R. 58).



3

In 1791 Prince Hall called an assembly of all the Negroes 
in the craft and, in accordance with Masonic law and author­
ity of that time, the African Grand Lodge was formed. 
This method of forming a new grand lodge is known in 
Masonic language as an “ assembly of the craft”  (R. 58, 
1024). The African Grand Lodge then proceeded to war­
rant local lodges under its authority (R. 58-59). Soon 
after Prince Hall died in 1807, a delegate convention con­
sisting of representatives of three lodges met in Boston 
and changed the name of African Grand Lodge to Prince 
Hall Grand Lodge (R. 61).

Respondent traces its origin directly to Prince Hall and 
African Lodge No. 459. Three lodges of Negro Masons 
were established in the State of Georgia immediately fol­
lowing the Civil War. Two of these lodges had been 
chartered by the Prince Hall Grand Lodge of Massachu­
setts and the other by the Prince Hall Grand Lodge of 
Pennsylvania (R. 165). These three lodges met in conven­
tion in 1870 and, in accordance with Masonic jurisprudence, 
respondent was formed under the name “ Most Worshipful 
Grand Lodge of Free and Accepted Masons of the State 
of Georgia”  (R. 62, 165-167).

Respondent has had a continuous existence in the State 
of Georgia since 1870 (R. 166-167, 177). Respondent was 
incorporated in the State of Georgia in 1890, receiving a 
charter from the Superior Court of Chatham County under 
the name “ Most Worshipful Union Grand Lodge of the 
Most Ancient and Honorable Fraternity of Ancient Free 
and Accepted Masons for the State of Georgia”  (R. 166- 
167). In 1936 this charter was renewed and amended by 
proper order of the court and respondent’s name was 
changed to “ Most Worshipful Prince Hall Grand Lodge 
A. F. and A. M. of Georgia” . The letters “ A. F. and 
A. M.”  are generally understood to mean Ancient Free and 
Accepted Masons (R. 169). The charter was again prop-



4

erly amended in 1950 and the name changed slightly to its 
present form: “ Most Worshipful Prince Hall Grand
Lodge, Free and Accepted Masons, Jurisdiction of 
Georgia”  (E. 167).

Considerable expert evidence was introduced which 
demonstrated that respondent is a regular and legitimate 
body of Masons, organized in conformance with Masonic 
law practice and tracing its origin to Prince Hall, the first 
Negro Mason in America (E. 53-62).

Petitioner was first organized about the year 1917 at 
or near Opelika, Alabama, when a group of about six to 
eight persons, said to he Master Masons, met and organ­
ized (E. 617, 1177). In 1921, petitioner was incorporated 
in the State of Alabama, receiving a charter from a court 
of competent jurisdiction for the County of Jefferson 
under the name “ Free and Accepted Colored Masons of 
America”  (E. 642-643, 1177). In 1924 delegates from a 
few subordinate lodges in Alabama and Georgia formed a 
Supreme Grand Lodge and J. B. Baldwin was elected 
Supreme Grand Master (E. 615-616, 1178). In 1945, by 
amendment to its charter, the name of petitioner was 
changed to “ Supreme Grand Lodge, Modern Free and 
Accepted Colored Masons of the W orld”  (E. 649).

Petitioner made no attempt to prove that it had received 
any warrant or authority from any duly constituted 
Masonic group. In fact, the Grand Master of petitioner 
admitted lack of any such authority (E. 743). Eather, 
petitioner sought to cast a cloud upon respondent’s legit­
imacy.

An expert witness offered by petitioner testified that 
certain grand lodges of Negro Masons participated in or 
acquiesced in the formation of a National Compact about 
the year 1847 (E. 490-494). This Compact formed by rep­
resentatives of those grand lodges as a national supreme 
body asserted supremacy over the state grand lodges. It



5

is admitted by all experts testifying that such a compact 
was formed (R. 490-494, 848). Respondent’s expert wit­
ness testified that said National Compact was found to be 
contrary to Masonic law and practice and was formally 
dissolved in 1877 (R. 247-248, 279, 256). Petitioner’s ex­
pert, on the other hand, claimed that said National Com­
pact was legitimate and persisted after 1877 (R. 494-495, 
590-591). This expert also claimed that respondent can 
trace its origin only to certain rebellious lodges which were 
expelled from the National Compact about 1877 and that 
respondent is therefore not a regular Masonic body 
(R. 811). These claims, however, are refuted by respond­
ent’s expert witness, Masonic treatises and historical 
materials which demonstrate that respondent is the regu­
lar and legitimate body of Negro Masons organized in con­
formance with Masonic law (R. 247-248, 279, 587-592).

There was also evidence that the activities of petitioner 
were not conducted in accordance with Masonic law and 
tradition (R. 84, 683-689, 721-731, 743-744, 747-750, 795- 
831). The fraternal aspects of petitioner were subor­
dinated to the business of providing insurance and burial 
aid, activities highly remunerative to petitioner’s officers. 
The evidence also showed that petitioner is a one-man 
enterprise, controlled by J. R. Baldwin, its Supreme Grand 
Master, who has utilized the organization to enhance his 
undertaking and casket business (R. 655, 659-665, 674, 683- 
689, 710, 721-731, 747-748, 757, 795-806, 828-831).

The Unfair Competition
Both petitioner and respondent use as the distinctive 

part of their names (R. 285) the words “ Free and Ac­
cepted”  and the word “ Masons” . Further, respondent’s 
evidence, not denied by petitioner, indicates that both par­
ties use the same signs, grips, password, emblems, badges 
etc. (R. 340, 362, 378). There is abundant evidence to the



6

effect that officers and agents of petitioner actively soli­
cited new member who were invariably told that petitioner 
was an order of “ Free and Accepted Masons” , that all 
Masonic lodges were the same, except that petitioner did 
more for its members, and that petitioner was world-wide 
(E. 339, 359, 384-385, 405, 419, 422, 422-443). Petitioner’s 
officers, in addition, assured prospective members that peti­
tioner used the same grips, signs, etc. used by every other 
Masonic lodge (R. 419, 711-712, 751). In fact, one of peti­
tioner’s subordinate lodges actually uses the term “ Prince 
Hall”  as a part of its name (R. 715).

There is also considerable evidence that the similarity 
in name and ritual resulted in injury to respondent and 
confusion to the public. Several witnesses testified that 
they thought that petitioner and respondent were one and 
the same body (R. 371-375, 385-386, 401-402, 418-419, 419- 
422, 446). A  number of persons were thereby misled into 
joining petitioner. There was like testimony indicating 
that the similarity in names resulted in confusion in the 
receipt of mail (R. 469, 980-982). Furthermore, there was 
evidence that petitioner had even usurped respondent’s 
physical premises. For example, one of petitioner’s sub­
ordinate lodges assumed control over the furniture and 
Masonic tools belonging to respondent, and members of 
petitioner’s lodge drove respondent’s members out of their 
own meeting place (R. 355-357).

Findings and Judgment of the District Court

After a trial without a jury, the District Court found 
as a fact that respondent and its legitimate predecessors 
have had a favorable and continuous existence in America 
since about 1776, and a continuous existence in the State 
of Georgia since a date immediately following the end of 
the Civil War (R. 1175). The trial court further found 
that petitioner came into existence in the State of Alabama 
in 1917 and that according to Masonic jurisprudence peti-



7

tioner is not regularly and lawfully organized (ft. 1177, 
1181). The court described petitioner as “ almost if not 
completely dominated and controlled by J. B. Baldwin, 
its Supreme Grand Master of its Supreme Grand Lodge” , 
and concluded that the interest of petitioner was largely in 
insurance and burial aid which it furnishes its members 
at considerable profit to its officers (ft, 1179-1180). On 
the basis of its history, the fact that it is largely a one- 
man institution and the fact that the insurance and burial 
aspects predominated, the District Court concluded that 
petitioner is not an authenic Masonic organization, but is 
spurious and illegitimate (R. 1181-1182). Finally, the 
court concluded that the adoption by petitioner of the 
words “ Free and Accepted” , which are the distinctive 
features of respondent, was done by petitioner with the 
intent to deceive and defraud the public and reap the benefit 
of respondent’s good will to the injury of respondent and 
to the confusion of the public (R. 1181). Accordingly, on 
January 2, 1952, judgment was entered enjoining peti­
tioner from using the words “ Free and Accepted”  and 
from using the ritual and ceremonies of respondent 
(R. 1184-1185). Subsequently, the District Court denied 
petitioner’s motion for a new trial and at the same time 
amended its judgment so as to restrain petitioner from 
using the words “ Free and Accepted Masons”  or 
“ Masons”  (R. 1190-1191). The Court of Appeals for the 
Fifth Circuit affirmed on January 6, 1954, Chief Judge 
Hutcheson concurring in part and dissenting in part 
(R. 1226-1232).



8

ARGUM ENT

I. The petition fails to comply with Rule 38 (2) 
of this Court.

The petition fails to state any question conforming with 
the requirement of Rule 38 (2) of this Court. The peti­
tion should accordingly be denied. See United States v. 
Rimer, 220 U. S. 547, and other cases cited in Rule 38(2).

II. The petition neither presents a federal question 
nor does it raise any important question of local law 
decided in a way probably in conflict with applicable 
local decisions.

This is an unfair competition action in which federal 
jurisdiction is based solely on diversity of jurisdiction. 
No federal question is presented1 nor does this case in­
volve any conflict between decisions of Courts of Appeal. 
No important question of local law is involved. Further­
more, the questions of local law decided below are clearly 
in accord with Georgia decisions.

There is no merit in petitioner’s assertion that the deci­
sion of the Court of Appeals is in conflict with the rule of 
Erie Railroad Co. v. Tompkins, 304 U. S. 64. Petitioner 
has indeed strained very hard to find a federal question 
in this record. Respondent agrees that the Georgia law of 
unfair competition is applicable and that under that law 
it is necessary to prove an intent to deceive or mislead the 
public. Atlanta Paper Co. v. Jacksonville Paper Co., 
184 Ga. 205, 190 S. E. 777 (1937). But it is clear that both 
the District Court and the Court of Appeals properly

1 Unlike Ancient Egyptian Arabic Order N. M. S. v. Michaux, 
279 U. S. 737, and Creswill v. Grand Lodge, Knights of Pythias of 
Georgia, 225 U. S. 246, petitioner here is not incorporated pursuant 
to Act of Congress.



9

applied Georgia law. In its finding of fact No. 31, the 
trial court found as follows:

“ 31. I find that the adoption by the defendant of 
the words ‘ Free and Accepted’, which are the dis­
tinctive features of the plaintiff, was done by the 
defendant with the intent to deceive and defraud the 
public and reap the benefit of plaintiff’s good will, 
to the injury and damage of the plaintiff, and to the 
confusion of the public”  (R. 1181).

In affirming, the Court of Appeals declared:
“ The finding of the trial court that appellant’s 
adoption of the infringing words as a part of its 
name was done with intent to deceive and defraud 
the public is well supported by the evidence *’ * * ”  
(R. 1228).

Thus, the real thrust of petitioner’s argument is not 
that the court below violated the rule of Erie Railroad Co. 
v. Tompkins by refusing to apply state law, but merely 
that the court below applied Georgia law badly in the sense 
that the finding that petitioner intended to mislead is not 
supported by the evidence. Thus rephrased, petitioner’s 
contention raises no federal question at all, unless every 
challenge to the sufficiency of the evidence in support of 
the application of proper state law in diversity cases can 
be denominated a federal question.

Petitioner’s reliance upon the decision in Atlanta 
Paper Co. v. Jacksonville Paper Co., supra, as repudiating 
prior Georgia decisions and changing the Georgia unfair 
competition law is plainly misplaced. In fact, the Georgia 
Supreme Court in Atlanta Paper cites with approval most 
of the cases which petitioner states were overruled. 184 
Ga. at 211, 190 S. E. at 782. The opinion in the Atlanta 
Paper case sums up the applicable Georgia law in these



10

words at pages 212-213 and 782-783 of the official and 
regional reports, respectively:

“ It [unfair competition] consists in passing off, or 
attempting to pass off, on the public, the goods or 
business of one person as and for the goods and 
business of another. It consists essentially in the 
conduct of a trade or business in such a manner that 
there is either an express or implied representation 
to that effect. In fact, it may be stated broadly that 
any conduct, the nature and 'probably tendency and 
effect of which is to deceive the public so as to pass 
off the goods or business of one person as and for 
the goods and business of another, constitutes action­
able unfair competition.”  (Emphasis added.)

Thus, while Georgia law requires proof of an intent to 
deceive, this can be proved by circumstantial evidence. 
Conduct, the natural and probable tendency of which is 
to deceive the public, is strong circumstantial evidence 
tending to prove the requisite intent.

There is in fact abundant evidence in the record in 
support of the District Court’s finding that petitioner in­
tended to deceive and mislead the public. Under the rule 
of Creswill v. Grand Lodge Knights of Pythias of Georgia, 
133 Ga. 837, 67 S. E. 188 (1910), rev. ot. gnds., 225 U. S. 
246, the mere appropriation and use by petitioner of 
respondent’s name where respondent has a clear right to 
its use is presumed fraudulent and alone can supply the 
necessary intent. But the evidence here is much more 
damaging. The evidence (as already set forth in the state­
ment of the case) shows repeated attempts on the part of 
petitioner’s officer to solicit members by representing that 
petitioner, like respondent, was a body of “ Free and 
Accepted Masons”  and that it used the same ritual as 
respondent and other authentic Masonic groups. There is 
likewise abundant evidence of resulting confusion. On all



1 1

the evidence, the conclusion is inescapable that petitioner, 
a group not formed in accordance with Masonic law and 
practice, appropriated the distinctive words which identify 
all legitimate Masonic orders, and conducted its activities 
with a clear intent to deceive and mislead the public.

The other points raised in the petition likewise present 
a challenge to the sufficiency of the evidence. For reasons 
already indicated, they do not raise any question meriting 
the grant of certiorari. Moreover, respondent submits 
that the evidence, as summarized earlier, clearly supports 
the findings of fact, conclusions of law and the full sweep 
of the injunctive relief granted by the courts below.

W herefore, it is respectfully submitted that this peti­
tion for a writ of certiorari should be denied.

Respectfully submitted,

T hurgood Marshall, 
A mos T. Hall,

Counsel for Respondent.

April 15th, 1954.