Aрpellants 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 “Paramоunt 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 appеllants, as to be a colorable imitation thereof, and is calculated to deceive persons with rеspect 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 cirсuit court, the court found the issues for defendants and dismissed plaintiffs’ bill and plaintiffs appealed.
At the outset we аre 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 cоnstitutional question involved in the case, we have jurisdiction. Otherwise not.
Appellants allege in their motion for nеw 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 dоes not necessarily mean that there is a constitutional question in the case. The ease 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.,
What questions are necessarily involved in thе instant case? Section 13272, Revised Statutes 1919, upon which appellants rely, provides as follows:
"Misuse of namеs of certain societies prohibited. — No person, society, association or corporatiоn shall assume, adopt or use the name of a military, ex-militarjq patriotic, benevolent, humane, fraternal оr charitable organization incorporated or organized under the laws of this or any other State or оf the United States, or a name so nearly resembling the name of such incorporated organization as to be a colorable imitation thereof, or calculated to deceive any person with respect to such corporation. In all cases where two or more such societies, associations, corporations or organizations claim the right to the same name or names substantially similar as above рrovided, the organization which was first organized and used the name and first became incorporated or оrganized under the laws of the United States or of any State in the Union, shall be entitled in this State to the prior and exclusive use of such name, and the rights of such societies, associations, corporations or organizations and of their individual members shall be fixed and determined accordingly. ”
Plaintiff invokes the provisions of this statute. The trial сourt had jurisdiction of both the parties and the subject-matter, and heard the evidence of both parties. Thе only question involved in the case and the only question the trial court was called upon to decide was whеther or not the evidence showed that the name adopted by respondents so resembled the name adopted by appellants as to be a colorable imitation thereof, or was calculated to deceive persons with respect thereto. The same is true of the other matters sought to be restrained. The determination of these questions of fact did not involve a construction of any constitutional provisions. If, as appellants contend, they have been wrongfully injured by the judgment of the trial court, such injury did not result from an errоneous interpretation of the Constitution, but from a wrong conclusion on the facts. In other words, the question in the case was not whether the acts charged against respondents would invade appellants constitutional rights, but was whether or not respondents had in fact committed the acts charged against them, the determination of which did not involve a constitutional question.
The first attempt made to raise a constitutional question was in the mоtion for new trial. There are cases in which the motion for new .trial affords the first opportunity to raise such quеstions, but as there is no constitutional question in the case, it is not necessary to either discuss or determine whethеr or not appellants’ attempt to raise the question in the motion for new trial was timely.
*869 Absent a constitutional question, we have no jurisdiction, and therefore transfer the case to the St. Louis Court of Appeals.