59 N.J. Eq. 26 | New York Court of Chancery | 1899
The bill, as already observed, charges that the several branches failed to pay the per capita tax which became due on March 4th, 1899, upon which failure each branch was notified that unless such tax was paid on or before August 15th, the council would suspend it; that upon failure to pay within the period the branches were, by resolution of the national council, suspended and were notified of such suspension.
The general laws, previous to 1899, said nothing about the
If this is so, it was not operative upon the per capita tax which became due on March 4th previous. As the law stood on March 4th, when the several branches defaulted, there was no law which made such default operate as a suspension. The failure to pay was a violation of the law of the order, for which the national council, by-law No. 16, had authority to suspend the offending branch. This law, however, imposed the duty on the national council to suspend from the order,
"after charges have been made and proved, any member, branch, district or átate council which may refuse compliance with the laws of the national convention.”
This law contemplates a trial upon charges and evidence with notice to the defending member or branch. There appears to have been no such charges preferred, nor trial had, of any of the branches who received notification of suspension.
Whether the law passed in the convention of 1899 was self-executing, and only required as a condition precedent to suspension the existence of the fact of non-payment of the tax, and its subsequent notice of suspension, is a question upon which the authorities differ. But if self-executing, I do not see how it can affect these assessments. The annual tax for the year matured on March 4th. No new tax became due in that year, and the law which took effect on the 1st of next April was not retroactive.
The suspension clause had reference to the per capita tax payable in the future. The law did not extend the time of payment of the tax which had already matured, so that it became payable on May 1st; nor did it retroact, so that a previous default, ipso facto, suspended a branch. Therefore, if it be conceded that the suspension of a branch would have rendered its members
But if it be true that the branches were legally suspended, how does the case stand? The complainant says that these officers, who were members of the suspended branches and whose places in the district council were filled by the remaining ■officers of that body, have set up an independent and spurious District No. 7; that they are using the name of “ St. Patrick’s Alliance of America,” and are, by the use of such name, depleting the membership of the old district. Now, it is undoubtedly ■the prerogative of a court of equity to enjoin a corporation that ■is using the name of another corporation to the injury of the latter. The name may stand as a trade-mark, which a court of •equity will protect against infringement. 1 Beach Corp. § 374; 10 Gent. L. J. 461; Holmes v. Holmes, 37 Conn. 278; Brooklyn v. Masury, 25 Barb. 416; Turton v. Turton, 7 Ry. & Corp. L. J. 64.
But the defendant denies that they are operating as a new •corporation. Their claim is that the branches óf which they •are members are loyal to the old constitution, and that those branches which have recognized an alteration in that instrument, which these defendants allege to be illegal, are the spurious branches. Or, to put it in another shape, it is a quarrel as to whether these defendants or the newly-appointed officers are ■the real officers of District No. 7.
Now, it is entirely settled that a court of equity will not decide which of two bodies of men represent a corporation unless some other equitable matter becomes entangled with this •question.
But it is said that the old treasurer holds funds of the district which he refuses to pay over to his appointed successor, and that this gives jurisdiction to decide the validity of his official character.
But the recovery of this money would be a subject not of equitable but of a legal remedy. Besides this answer, it is denied by the affidavits of the defendants that the said treasurer ■holds any money belonging to District No. 7.
