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 Petition for Writ of Certiorari

    Petition for Certiorari 
No. L 2 ±

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1953

SUPREME GRAND LODGE, MODERN FREE AND 
ACCEPTED COLORED MASONS 

OF THE WORLD,
PETITIONER,

versus

MOST WORSHIPFUL PRINCE HALL GRAND LODGE, 
FREE AND ACCEPTED MASONS, JURISDICTION 

OF GEORGIA,
RESPONDENT.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH  CIRCUIT AND 
SUPPORTING ARGUMENT.

W. Edward Swinson, 
Columbus, Georgia,

Counsel for Petitioner.



1

I N D E X

Page

Style of C a s e ........................................................................1

Prayer for W r i t .................................................................. 1

Opinions B e lo w ...........................................................  1

Ju risd ic tio n ...........................................................................2

Statutes Involved..................................................................2

S ta te m e n t............................................................................. 2

History of Corporate Names
of Petitioner and Respondent....................................... 3

Specification of E r r o r s ....................................................... 9

Reasons for Granting W rit................................................12

C o n c lu s io n ........................................................................18

Signature of Counsel for P e tit io n e r ...........................18

Appendix A
Georgia Code Sec. 3 7 -712 ...........................................19

Georgia Code Secs. 106-201-2 . . . . 21-23



AUTHORITIES CITED

Page
Same Case Below, 105 F. Supp. 3 1 5 ........................... 1

Georgia Code Sec. 37-712, See Appendix A, page 19 3

Larrabee & Co. v. Lewis, 67 Ga. 5 6 1 ........................... 6

Lane v. Evening Star, 120 Ga. 355 ................................ 7

Creswill v. Knights of Pythias, 133 Ga. 837 . . .  7

Good Samaritans v. Mack, 139 Ga. 835 ......................7

Faison v. Adair, 144 Ga. 797 ............................................ 7

Emory v. Odd Fellows, 140 Ga. 423 ................................. 7

Graves v. Grand Lodge, 155 Ga. 1 4 7 ................................. 7

Graves v. Grand Lodge, 161 Ga. 1 1 0 .................................7

Carter v. Carter Elec. Co., 156 Ga. 297 ...........................7

Industrial Co. v. Mitchell, 164 Ga. 437 ........................... 7

Saunders v. Drive It Yourself, 158 Ga. 1 ......................7

Atlanta Paper Co. v. Jacksonville Paper Co.,
184 Ga. 205 ..............................................................8

First Fed. Asso. v. First Finance Corp.,
207 Ga. 695 ..............................................................8

Kay Jewelry v. Kapiloff, 204 Ga. 209 ........................... 8

11



Ill

Page

Gordy v. Dunwoody, 74 S. Rep. 2d, 886 ......................8

Erie Railroad Co. v. Tompkins, 304 U. S. 64,
82 L. ed. 1 1 8 8 .................................................................. 8

Ruhlin v. N. Y. Life Ins. Co., 304 U. S. 202,
82 L. ed. 1290 .................................................................. 8

Creswill v. Knights of Pythias, 225 U. S. 246,
56 L. ed. 1074 ............................................................ 16



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1953

SUPREME GRAND LODGE, MODERN 
FREE AND ACCEPTED COLORED 
MASONS OF THE WORLD,

Petitioner,

versus

MOST WORSHIPFUL PRINCE HALL 
GRAND LODGE, FREE AND ACCEPTED 
MASONS, JURISDICTION OF GEORGIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE FIFTH  CIRCUIT 

AND SUPPORTING ARGUMENT.

Petitioner prays that a writ of certiorari issue to review 
the judgment of The United States Court of Appeals for 
the Fifth Circuit, entered in the captioned case on January 
6, 1954.

OPINIONS BELOW
The findings, conclusions and judgment of the District 

Court (R. 1170-1185) are reported in 105 F. Supp. 315. The 
opinion of the Circuit Court of Appeals (R. 1226-1229) is 
unreported. The dissenting opinion of Hutcheson, Chief 
Judge, (R. 1229-1231) is unreported.



2

JURISDICTION
The judgment of the Circuit Court of Appeals was 

entered on January 6,1954, (R. 1231-1232). The jurisdiction 
of this Court is invoked under 28 U. S. C., Section 1254 (1).

STATUTES INVOLVED
The pertinent statutory provisions appear in Appendix 

A hereof, infra, pages 19-23.
STATEMENT

This action, instituted by Respondent against Petition­
er in the District Court (Middle Dist., Georgia), was for 
injunction against the use of the words “Free and Accepted 
Masons” as part of the corporate name of Petitioner, and 
against the use by Petitioner of the masonic signs, emblems, 
etc., of Respondent. (See Complaint, R. 2-9; Amendment, 
R. 10-12).

Respondent was incorporated in Georgia in 1890 as a 
negro masonic order. (R. 1175). Petitioner was incorporated 
in Alabama in 1921 as a negro masonic order. (R. 1164- 
1166).

The original Complaint was brought on the charge 
that the acts of Petitioner were done “so as to deceive and 
confuse the public concerning the identities of the respec­
tive organizations.” (Complaint, paragraph 15, R. 7). The 
Complaint as amended charged that the acts of Petitioner 
were done “so as to have a tendency to deceive and confuse 
. . . "(Amended Complaint, paragraph 2, R. 11). While for 
pleading the change may not be important, it becomes im­
portant because Georgia law requires proof (and pleading) 
that the acts of unfair competition must be committed “with 
intention of deceiving and misleading the public.” (See 
Georgia Code, Sec. 37-712, Appendix A hereof, page 19).

Despite the facts that the evidence, without dispute, 
showed the following history of the corporate names of Pe­
titioner and Respondent, giving to each their designation 
in the trial court:



3

Plaintiff
(Respondent here) 

Georgia Corporation 
Names

Defendent 
(Petitioner here) 

Alabama Corporation 
Names

Dates
1890 Most Worshipful Union 

Grand Lodge of the 
Most Ancient and 
Honorable Fraternity 
of Ancient Free and 
Accepted Masons for 
the State of Georgia.

1910 Same
1917 Same

1921 Same

1924 Same 

1926 Same

1930 Same
1936 Most Worshipful Prince 

Hall Grand Lodge A.F. 
and A. M. of Georgia. 

1945 Same

(Organized as association 
under name Free and 
Accepted Colored Masons 
of America.)
Incorporated as Free and 
Accepted Colored Masons 
of America.
(Year Defendent entered 
Georgia)— Same 
Supreme Grand Lodge of 
Free and Accepted Colored 
Masons of America.
Same
Same

Supreme Grand Lodge 
Modem Free and Accepted 
Colored Masons of the 
World.

1950 Most Worshipful Prince Same 
Hall Grand Lodge Free 
and Accepted Masons, 
Jurisdiction of Georgia 

At
time of 

suit Same Same



4

and that there was no evidence of any kind that Petitioner 
represented itself to be Respondent, or associated with or 
a part of Respondent, or sponsored by or affiliated with 
Respondent, the District Court on December 28, 1951, en­
joined Petitioner (a) from using or employing the ceremo­
nies, emblems, etc. of Respondent, and (b) from using the 
words “Free and Accepted” in its corporate name or other­
wise. (R. 1170-1185; Judgment, R. 1184-1185).

After the decision of the District Court was announced, 
Petitioner employed its present Counsel, W. Edward 
Swinson, to represent it and to appeal the decision.

Petitioner then filed a motion for new trial. (R. 1185- 
1188). In the order denying that Motion, the District Court, 
without Motion of Respondent or written request made for 
it, amended the original judgment or decree, and enjoined 
Petitioner from using the word “Masons” as a part of its 
corporate name or otherwise. (R. 1190-1191).

On appeal to the Fifth Circuit Court of Appeals, Pe­
titioner, among other contentions, urged that the injunctive 
judgment was clearly erroneous, because:

(1) The Georgia statute (Appendix A hereof, page 19) 
had not been cited to or applied by the District Court.

(2) The words “Free and Accepted Masons” are not 
(while the words “Prince Hall” are) the distinctive feature 
of the name of Respondent, and that there was no evidence 
showing that the adoption of the words “Free and Accepted 
Masons” by Petitioner was done “with intention of deceiv­
ing and misleading the public.”

(3) There was no evidence that Petitioner represented 
itself to be, or to be a part of, or affiliated with, or sponsored 
by, Respondent.



5

(4) The evidence affirmatively showed that the cere­
monies, emblems, etc. used by Respondent were used by 
all other negro masonic organizations, including Petitioner, 
in Georgia, and the District Court, therefore, was not au­
thorized to enjoin Petitioner from the use or practice there­
of.

(5) The District Court was not authorized by law to 
enjoin Petitioner from the use of the word “Masons,” as 
part of its Alabama coiporate name, or otherwise.

(6) The fact that Petitioner had not received a charter 
or franchise from a recognized or superior masonic body 
was not sufficient to authorize the District Court to condemn 
Petitioner with illegality, and there was no evidence to 
support the findings of the District Court that Petitioner 
misrepresented in any way its origin.

(7) Respondent was estopped by laches.

The Fifth Circuit Court, through Circuit Judges 
Russell and Rives (Chief Judge Hutcheson dissenting), dis­
regarding the contentions of Petitioner, and particularly 
the contention that Georgia law required proof of the in­
tent to deceive and mislead the public “as a prerequisite to 
the granting of injunctive relief,” affirmed the decision of 
the District Court. (See Opinion, R. 1226-1229).

In the dissent Chief Judge Hutcheson concurred on 
the point that there was sufficient evidence to support the 
injunction against the use of the words “Free and Accept­
ed;” and he dissented strongly to the ruling of the majority 
that Petitioner is not “ a legally existing masonic organiza­
tion,” and vigorously to the implied ruling of the majority 
that Respondent is entitled to use the word “Masons” while 
Petitioner is not. (R. 1229-1231).



6

In deciding the question of the sufficiency of the evi­
dence to authorize the findings and judgment of the District 
Court, the Fifth Circuit Court overlooked or ignored the 
following: (a) the words “Free and Accepted” were appro­
priated to the corporate name and activities of Petitioner 
in 1921 when Petitioner was incorporated in Alabama long 
before there was competition between Respondent and 
Petitioner; (b) it is common knowledge that almost all ma­
sonic bodies, for white and for colored, use the words Free 
and Accepted” in their names, and the evidence shows that 
to be true among the negro masonic organizations in Geor­
gia; (c) the same emblems, ceremonies, etc., used by 
Respondent were used by all other negro masonic bodies 
in Georgia, including Petitioner; and the substantive 
Georgia law applicable to this cause, which was not applied 
to the evidence in this case by either the District Court or 
the Appellate Court, requires as a prerequisite to the grant 
of an injunction that the intent to deceive and mislead the 
public must be proven.

In failing to apply the Georgia law with regard to proof 
of intent, the Fifth Circuit Court ignored the applicable 
statutory law of Georgia, Georgia Code 1933, Sec. 37-712 
(Appendix A hereof, page 19), and the Georgia decisions 
cited to that Court.

Georgia Code Sec. 37-712 was applied by the Supreme 
Court of Georgia in a decision rendered on November 18, 
1881, as follows:

“. . .T o  have a word or words claimed as a
trade-mark protected by injunction from use by 
another, it should appear that the defendant’s use 
of them was with intent to deceive or mislead the 
public.” (Emphasis supplied).

Larrabee & Co. v. Lewis, 67 Ga. 561, 562 (2).



7

There being no special statute of unfair competition 
in Georgia applicable generally to fraternal corporations 
or associations, the established equitable principles of un­
fair competition are applied to cases of unfair competition 
between such organizations.

Lane v. Evening Star, 120 Ga. 355 (1).
Creswill v. Knights of Pythias, 133 Ga.

837, rev. 255 U. S. 246,
56 L. ed. 1074.

Between the time that Larrabee & Co. v. Lewis, supra, 
was decided in the year 1881, and the time that the case of 
Atlanta Paper Co. v. Jacksonville Paper Co., 184 Ga. 205, 
was decided on March 25, 1937, the following unfair com­
petition cases were decided by the Supreme Court of 
Georgia, without applying Georgia Code, 1933, Sec. 37-712; 
and it is believed that said Code Sec. 37-712 in that interim 
was overlooked.

Good Samaritans v. Mack, 139 Ga. 835;
Faison v. Adair, 144 Ga. 797;
Emory v. Odd Fellows, 140 Ga. 423;
Graves v. Grand Lodge, 155 Ga. 147;
Graves v. Grand Lodge, 161 Ga. 110;
Carter v. Carter Elec. Co., 156 Ga. 297;
Industrial Co. v. Mitchell, 164 Ga. 437;
Saunders v. Drive It Yourself, 158 Ga. 1.
The Supreme Court of Georgia in the cases cited 

immediately supra, made rulings in conflict with Georgia 
Code, 1933, Sec. 37-712, and the construction thereof ap­
pearing in Larrabee & Co. v. Lewis, supra. Those holdings 
were based upon authorities and precedents from states 
and jurisdictions other than Georgia. Among the rulings at 
variance with the Georgia law were holdings asserting that 
if “tendency” to deceive or “likelihood” of deceiving the 
public appears, an injunction may be granted.



8

On March 25, 1937, the Supreme Court of Georgia, 
in deciding the case of Atlanta Paper Co. v. Jacksonville 
Paper Co., 184 Ga. 205 opin. 213, returned to the construc­
tion of Georgia Code, 1933, Sec. 37-712 made by the 
Georgia Court in Larrabee v. Lewis, supra, and said, “. .  . in 
this State our statute must govern.”

Perhaps the State of Georgia is not abreast of the 
modern developments in the law of unfair competition. It 
may be that the better and more advanced rule is that if 
the evidence shows the “tendency” or “likelihood” that the 
public will be deceived or misled, an injunction may be 
granted; but the law of Georgia is otherwise. It requires 
proof of intent to deceive or mislead the public. The Su­
preme Court of Georgia has never varied the rule since the 
Atlanta Paper Co. decision, supra. See:

First Fed. Asso. v. First Finance Corp.,
207 Ga. 695;

Kay Jewelry v. Kapiloff, 204 Ga. 209;

Gordy v. Dunwoody, 74 So. Rep. 2d 886.

Decisions of this Court required that the District Court 
and the Fifth Circuit Court apply the substantive Georgia 
law of unfair competition to this cause.

Erie Railroad Co. v. Tompkins,
304 U. S. 64, 82 L. ed. 1188;

Ruhlin v. N. Y. Life Ins. Co.,
304 U. S. 202, 82 L. ed. 1290.

The ruling of the District Court affirmed by the Fifth 
Circuit Court enjoining Petitioner from using the word 
“Masons,” without regard here to the circumstances under 
which it was rendered, amounts to a sort of judicial tyranny 
which dictates that Petitioner, an Alabama fraternal corpor­



9

ation for colored persons, shall not conduct a negro masonic 
organization within the State of Georgia. The proper object 
of the law of unfair competition is to correct evils in bus­
iness and among fraternal organizations, not to destroy 
their beneficial functions.

SPECIFICATION OF ERRORS TO RE URGED

The Circuit Court of Appeals erred:

1. In affirming the judgment of the District Court.

2. In holding that the evidence of unfair competition 
was sufficient to support the judgment of the District Court.

3. In failing to apply the Georgia law of unfair compe­
tition requiring proof of intent to deceive or mislead the 
public as a perequisite to the grant of an injunction, and in 
failing to hold that the evidence as measured by that rule 
was insufficient to sustain the judgment.

4. In holding in effect that a negro masonic body, or­
ganized without having first obtained a charter or franchise 
from a superior, recognized masonic body, is illegal in the 
sense that the District Court was authorized by law to find 
against Petitioner because it was organized without such 
charter.

5. In ruling against Petitioner because it had not first 
obtained a charter from a superior, recognized masonic 
body, when the evidence fails to show that Respondent was 
organized after first having obtained such a charter.

6. In failing to hold that the evidence, under Georgia 
law, was insufficient to sustain the injunctive judgment of 
the District Court in regard to emblems, ceremonies, etc.



10

7. In holding that the District Court, without motion 
or request therefor, was authorized by law to amend its 
original injunctive judgment in the order entered on the 
motion for new trial of Petitioner, enjoining Petitioner from 
the use of the word “Masons” as a part of its corporate 
name or otherwise.

8. In holding that the evidence, under Georgia law, 
was sufficient to sustain the injunctive judgment of the Dis­
trict Court enjoining Petitioner from the use of the word 
“Masons.”

9. In holding that Petitioner was not entitled under 
Georgia law to conduct a negro masonic body within the 
State of Georgia.

Simply to aid in the study of the record for the purpose 
of determining the validity of the contention of Petitioner 
that the foregoing errors were made, Petitioner supplies 
the following:

10. The Complaint (R. 2-9, Amendment R. 10-12) was 
framed so as to be brought under Georgia Code, 1933, Sec­
tions 106-201-2 (Appendix A hereof, pages 19-23) and also 
under the general Georgia law of unfair competition. The 
Attorney who represented Petitioner in the District Court 
never seemed to realize that Respondent was prosecuting 
the action on the two theories, and said Attorney never did 
cite to the District Court Georgia Code, 1933, Sec. 37-712 
or the decisions of the Supreme Court of Georgia construing 
the same cited later to the Fifth Circuit Court and herein 
cited. The District Court ruled favorably to Petitioner on 
said Sections 106-201-2, and unfavorably to Petitioner 
under the general Georgia law of unfair competition. Code 
Sections 106-201-2 are set forth in Appendix A hereof only 
to point out that the intent of Georgia law seems to be



11

to discourage injunctions against fraternal organizations, 
and, in a measure, to protect them in the use of their names.

11. This is not a case of a schismatic group leaving 
a parent organization and organizing a similar fraternal 
body (R. 1177), charged with the intent of appropriating the 
name and good will of the parent. That distinction in itself 
requires the application of a stricter rule to the evidence.

12. There is no evidence that the adoption or use of 
the words “Free and Accepted Masons” was made for the 
purpose of deceiving or misleading the public. It will be 
seen from the history of the corporate names set forth at 
page 3 hereof that the changes made by Petitioner 
since 1944 serve to distinguish more clearly the two names 
while the changes made by Respondent make the names 
more similar.

13. There was evidence, improperly admitted in the 
opinion of Counsel for Petitioner, which indicated that the 
business of Petitioner was inefficiently conducted to the 
point that fraud upon members might be practiced, but 
no witness appeared complaining of abuses or breach of 
contractual relations by Petitioner.

14. Attempts were made by Respondent to prove mis­
representation by name (R. 215-227; 397-403; 227-231; 416- 
418; 231-235; 302-303; 403-408; 409-416; 432-440; 284- 
285; 714; 370-382; 416-422; 441-452; 452-456; and 856- 
868); but in each instance the evidence was either too weak 
in weight to be relied upon or it affirmatively appeared 
that Petitioner was clearly identified from Respondent.

15. There was one instance where Respondent claim­
ed that Petitioner tried to take a local lodge, its lodge hall 
and members (R. 301), but the testimony showed that Re­



12

spondent had abandoned the same and no misrepresenta­
tions were made. (R. 238-241; 338-358; 358-369).

16. Respondent attempted to prove confusion in mail 
and confusion produced by the use of the stationery of 
Petitioner (R. 468-474; 980-982), but the testimony did not 
amount to competent evidence.

REASONS FOR GRANTING THE WRIT

1. The Fifth Circuit Court failed to apply the Georgia 
law requiring that, as a prerequisite to the grant of the 
injunction, proof of the intent to deceive or mislead the 
public must have been made. In effect, that was a failure 
to apply the decisions of this Court in Erie Railroad Co. v. 
Tompkins, supra, and Ruhlin v. N. Y. Life Ins. Co., supra. 
Counsel for Petitioner is familiar with the principle that 
federal courts are not bound completely by the rules of 
evidence in force and effect in the state courts, but this 
Georgia rule is not simply a rule of evidence. It is sub­
stantive, and is a statutory condition precedent to the grant 
of an injunction in unfair competition suits.

There are times when an appellate court is somewhat 
doubtful of its decision and the doubt appears from its 
written opinion as a sort of self-consciousness which cannot 
be concealed. Petitioner believes this to be such a decision 
by the Fifth Circuit Court. Else, why would the opinion 
have stated: “The finding of the trial court that appellant’s 
(Petitioner’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, and therefore we 
do not deem it necessary to consider appellant’s contention 
that such intent must be proved as a prerequisite to the 
granting of injunctive relief?”



13

While uniformity of decision may be desirable in the 
federal courts, the rationale of the Erie and Ruhlin 
decisions, supra, is to create lack of uniformity in federal 
decisions where state laws are different. And in actions 
involving state laws, it is highly important, under the decis­
ions of this Court, that state laws be given effect. It is 
important to the citizens of each state for it tends to pro­
mote uniformity of decision between the state courts and 
federal courts of each state where the law of the state is 
involved.

2. The charge is respectfully but not lightly made 
that there is no competent evidence in the record to justify 
the judgments of the District and Fifth Circuit Courts. 
Counsel for Petitioner is somewhat of the opinion that 
this statement is true even if the Georgia law be not applied. 
And Counsel for Petitioner sincerely believes that, if the 
Georgia law is applied, the charge is correct.

If it should be that the judgment of the District Court 
was clearly erroneous, because without competent evidence 
to support it, then the Fifth Circuit Court has sanctioned 
a departure from law and due process which should author­
ize the exercise of the supervisory powers of this Court. 
It becomes then, not so much a matter of correcting errors 
assumed in the risk of litigation, as a matter of injustice, 
rectifiable only by, and despite of the other important 
business of, this Court.

3. In arriving at the decision that there was sufficient 
evidence to support the judgment, the District Court found 
(R. 1181-1182) and the Fifth Circuit Court sanctioned the 
finding by affirmance (R. 1228), that Petitioner was not “a 
legally existing masonic organization according to Masonic 
history and jurisprudence,” because Petitioner at the time 
of its corporate organization or since did not possess “a



14

warrant or charter from any recognized masonic body.” 
That finding and holding was made despite the fact that 
there was no proof that Respondent possessed such a “war­
rant” or “charter” at the time of its organization or at the 
time this suit was instituted by it.

If that finding or holding is an essential finding to the 
judgments of the District and Fifth Circuit Courts, then 
Petitioner sincerely believes it to be error, and serious 
error.

It is important that this error be not permitted to stand 
to confuse the future application of the law of unfair compe­
tition. Chief Judge Hutcheson, cognizant of the illegality 
of the concept, criticised the judgment of the Fifth Circuit 
in that respect in his dissent. (R. 1229-1231).

4. In affirming the injunction of the District Court 
against the use of the word “Masons,” the Fifth Circuit 
Court sanctioned the act of the District Court in amending 
its injunctive order, without motion or written request 
therefor, in the order denying the motion for new trial filed 
by Petitioner. As Chief Judge Hutcheson points out in the 
dissenting opinion (R. 1229 et. seq.), that was done by the 
District Judge without any reason of record to support it. 
Not only did the Fifth Circuit Court sanction that irregular 
practice, but sanctioned what is in effect a court order 
denying to Petitioner the right to conduct a negro masonic 
body in the State of Georgia. Certainly, there is nothing 
in the law, or in the evidence in this cause, to justify the 
imposition of such a penalty. If Petitioner is guilty of con­
duct amounting to unfair competition with regard to the 
words “Free and Accepted” and any of its other acts, there 
is nothing in this record to show that an injunctive order 
against all such conduct would not adequately and pros­
pectively protect Respondent. The judgment, as it stands,



15

denies to a small but growing masonic organization, Peti­
tioner, its rightful chance “to be accepted in the market 
place” in Georgia.

5. If the findings and judgment of the District Court 
are read without an analysis of the evidence, the impression 
is received that the District Judge was morally justified in 
attempting to discover a path authorized by law to grant 
an injunction. When the evidence is carefully read, the 
impression is obtained that certain facts had become greatly 
exaggerated in the mind of the District Judge, causing him 
to conclude that, because of irregularities in the manage­
ment of Petitioner which might tempt fraud to be commit­
ted upon members of Petitioner by the officers of Petitioner, 
the Supreme Grand Master of Petitioner prior to the suit 
had already committed such frauds. Counsel for Petitioner 
is of opinion that all such evidence is immaterial and should 
not have been received. But despite the irrelevancy of the 
evidence introduced, an examination of the record will fail 
to disclose even one complaint or charge that a single mem­
ber of Petitioner was injured by Petitioner, or any act of its 
Supreme Grand Master, or ever lost one cent Petitioner 
contractually agreed to pay.

As an illustration that some of the evidence was exag­
gerated in the mind of the District Judge, Counsel for Peti­
tioner desires to state one instance. The District Court 
made a finding that, in effect, Petitioner regularly and 
customarily gave to its new members the first three masonic 
degrees in one night. (R. 1181-1182). The evidence to 
support that finding is not only weak and unsatisfactory, 
but that evidence coming from the witnesses of Respondent 
is not competent, because it shows that a dishonest local 
lodge official, without proof of knowledge by or authority 
from Petitioner, did give the three degrees to one person 
in one night as a part of a scheme to embezzle money from



16

Petitioner. (R. 447 et seq.). It is true that the Supreme 
Grand Master of Petitioner testified he had heard of several 
local lodges which had given the three degrees in one night, 
but he insisted that was not authorized by Petitioner or 
customarily practiced. (R. 753-754). With only the stated 
basis for the finding, it is clear that the finding was preju­
dicial to Petitioner and based upon a misinterpretation of 
the weight of the evidence.

6. This is not the first case between fraternal organiza­
tions involving the Georgia law of unfair competition which 
has reached this Court. See Creswill v. Grand Lodge 
Knights of Pythias of Georgia, 225 U. S. 246, 56 L. ed. 1074. 
The Creswill decision, supra, reversed the Supreme Court 
of Georgia by sustaining a plea of laches, but in addition 
this Court strongly indicated a reversal might have been 
made upon insufficient evidence to support the decree. A 
reading of the Creswill opinion of the Supreme Court of 
Georgia (133 Ga. 837) and the opinion of this Court in that 
case, supra, will show that the evidence in this case suffers 
from the same defects which existed in the evidence in the 
Creswill case. It is against the public interest for the law 
to be strained to do a good, because the future suffers. Rut 
the evil is worse when a case is decided against a litigant 
on insufficient evidence, for then public confidence in the 
integrity and judgment of our courts is damaged and the 
error never ceases to harm our people.

7. The evidence showed that Petitioner had conducted 
a negro masonic order in Georgia since 1924 (R. 1178), and 
that at the time of the hearing in the District Court Peti­
tioner was maintaining a substantial number of local lodges 
scattered over Georgia, with a Georgia membership of 
approximately 2,200 members (R. 1180); that Petitioner 
also had state organizations and local lodges, affiliated with 
Petitioner, in between fourteen and sixteen states other



17

than Georgia, with membership of approximately 10,000 
(R. 1180); and that in Georgia there were three prin­
cipal negro Masonic bodies; Respondent, the largest, the 
York Masons, the second in size, and in the York name 
are the words, “Free and Accepted Masons” (R. 480); and 
Petitioner, the smaller. The evidence, too, shows that Pe­
titioner, in comparison with Respondent, is much the 
smaller financially.

The judgment of the Fifth Circuit Court, despite the 
fact that it may not affect the rights of members contained 
in the burial certificates (R. 1229), does affect and restrain 
the rights or desires of the 2,200 Georgia members of Peti­
tioner. They, too, by its force are enjoined; they are denied 
the right to remain members, and still others are denied 
the privilege of becoming members, of a negro masonic 
body which they prefer over other such bodies available to 
them. It is not of record, but Counsel for Petitioner be­
lieves it not improper to state that not a single member 
of Petitioner has been lost because of this litigation, but 
that on the other hand membership in Petitioner has in­
creased since the suit was instituted.

The 10,000 members of Petitioner in states other than 
Georgia may also be affected. Petitioner is the parent 
organization of the state and local lodges in the fourteen 
to sixteen states other than Georgia in which Petitioner 
operates. It may be contended later, if the judgment stands, 
that Petitioner cannot use the words “Free and Accepted” 
or the word “Masons” in its corporate name in Georgia, 
even though Petitioner confines its operations to acting as 
the parent of the state and local lodges in all the states 
except Georgia, and in Georgia it abandons all other activ­
ity. In any event, the 10,000 non-resident members are 
interested and may be affected.



18

But one of the factors of great importance to the public 
interest is that the members of Petitioner believe, as does 
Counsel for Petitioner, that an injustice though not wilfully 
has been done by the District and Fifth Circuit Courts, and 
that, while this case involves only the less-privileged in the 
country, it is of sufficient importance to appeal to this Court 
to devote some of its valuable time to review the proceed­
ings and correct any substantial injustice committed.

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

This 10th day of March, 1954.

W. Edward Swinson, 
Counsel for Petitioner.

Address:
507 Murrah Building, 
Columbus, Georgia.

Swinson, Elliott & Schloth, 
Of Counsel for Petitioner, 
507 Murrah Building, 
Columbus, Georgia



19

APPENDIX A

Item 1. Any attempt to encroach upon the business of a 
trader, or other person, by the use of similar 
trademarks, names or devices, with intention of 
deceiving and misleading the public, is a fraud 
for which equity will grant relief.

Georgia Code Anno., 1933, Sec. 37-712.

Item 2. From the following Georgia statute:

BENEVOLENT ORGANIZATIONS, 
PROTECTION OF NAMES AND EMBLEMS 

No. 276
An act to preserve to benevolent, fraternal, 

social, humane or charitable organization, which 
are not organized for individual pecuniary gain, 
the right to the exclusive use of the names adopt­
ed and used by them, whether incorporated or 
not; to protect such organizations in the use of 
their names and emblems, and prevent the in­
fringement and unauthorized use thereof, and 
for other purposes.

Section 1. Be it enacted by the General 
Assembly of the State of Georgia, and it is hereby 
enacted by the authority of the same, that from 
and after the passage of this Act, no person or 
organization shall assume, use or adopt, or be­
come incorporated under, or continue to use the 
name and style or emblems of any benevolent, 
fraternal, social, humane, or charitable organiza­
tion previously existing in this State, and which 
has been incorporated under the laws of this



20

or any other State, or of the United States, or a 
name and style or emblems so nearly resembling 
the name and styles of such incorporated organi­
zation as to be a colorable imitation thereof. In 
all cases where two or more of such societies, 
associations or corporations claim the right to the 
same name, or to names substantially similar as 
above provided, the organization which was first 
organized and used the name, and first became 
incorporated under the laws of the United States, 
or of any State of the Union, whether incorpor­
ated in this State or not, shall be entitled in this 
State to the prior and exclusive use of such name 
and the rights of such societies, association or 
corporations, and of their individual members 
shall be fixed and determined accordingly.

Section 2. Be it further enacted, That when­
ever there shall be an actual or threatened 
violation of the provisions of Section 1 of this Act, 
the organization entitled to the exclusive use of 
the name in question, under the terms of said 
Section, shall have the right to apply to the 
proper courts for an injunction to restrain the 
infringement of its name and the use of its em­
blems, and if it shall be made to appear to the 
court that the defendants are in fact infring­
ing or about to infringe the name and style of 
a previously existing benevolent, fraternal, social, 
humane, or charitable organization in the manner 
prohibited in said Section 1 of this Act, or that 
the defendant or defendants are wearing or using 
the badge, insignia or emblems of said organiza­
tion, without the authority thereof and in viola­
tion of said Section 1, an injunction be issued by



21

the court under the principles of equity without 
requiring proof that any person has been in fact 
misled or deceived by the infringement of such 
name, or the use of such emblem.

Section 3. Be it further enacted, That any 
person who shall wear a badge, button, or other 
emblems, or shall use the name or claim to be a 
member of any benevolent, fraternal, social, hu­
mane or charitable organization which is entitled 
to the exclusive use of such name and emblems 
under Section 1 of this Act, either in the identical 
form or in such near resemblance thereto as to be 
a colorable imitation of such emblems and name, 
unless entitled to do so under the laws, rules and 
regulations of such organization, shall be guilty 
of a misdemeanor, and upon conviction thereof 
shall be punished as prescribed in Section 1039 
in the Penal Code of Georgia.

Section 4. Be it further enacted, That all 
laws and parts of laws in conflict with this Act be, 
and the same are, hereby repealed.

Approved August 17, 1909.

the following sections of the Georgia Code were 
codified:

Item 3. 106-201. Imitation of name, style, or emblem;
priority of right.— No person or organization 
shall assume, use, or adopt, or become incorpor­
ated under, or continue to use the name and 
style or emblems of any benevolent, fraternal, 
social, humane, or charitable organization pre­



22

viously existing in this State, and which has been 
incorporated under the laws of this or any other 
State, or of the United States, or a name and 
style or emblem so nearly resembling die name 
and style of such incorporated organization as to 
be a colorable imitation thereof. In all cases 
where two or more of such societies, associations, 
or corporations claim the right to the same name, 
or to names substantially similar as above pro­
vided, the organization which was first organized 
and used the name, and first became incorporated 
under the laws of the United States or of any 
State of the Union, whether incorporated in this 
State or not, shall be entitled in this State to the 
prior and exclusive use of such name, and the 
rights of such societies, associations, or corpora­
tions, and of their individual members shall be 
fixed and determined accordingly. (Acts 1909, 
p. 139.)

106.202. Injunction against infringement.—  
Whenever there shall be an actual or threatened 
violation of the provisions of the preceding sec­
tion, the organization entitled to the exclusive 
use of the name in question, under the terms of 
said section, shall have the right to apply to the 
proper court for an injunction to restrain the in­
fringement of its name and the use of its em­
blems; and if it shall be made to appear to the 
court that the defendants are in fact infringing 
or about to infringe the name and style of a pre­
viously existing benevolent, fraternal, social, 
humane, or charitable organization in the manner 
prohibited in said section, or that the defendant 
or the defendants are wearing or using the badge,



23

insignia, or emblems of said organization, without 
the authority thereof and in violation of said 
section, an injunction may be issued by the court 
under the principles of equity without requiring 
proof that any person has been in fact misled or 
deceived by the infringement of such name, or 
the use of such emblem. (Acts 1909, pp. 139,140.)

Ga. Code Anno., 1933, Secs. 106-201-2.