People ex rel. Felter v. Rose ( 1907 )

Mr. Justice Vickers

delivered the opinion of the court:

On August 14, 1905, the relators filed in the office of the Secretary of State a certificate, duly acknowledged and authenticated, for the organization of a corporation for benevolent, charitable, educational, musical, literary, scientific, religious, social and missionary purposes, and not for pecuniary profit, under the name of “National Liberty League,” with its principal office at 26 VanBuren street, in the city of Chicago, and- requested the Secretary of State to issue to it a certificate of organization, which he refused to do. Upon such refusal the relators filed their original petition in this court for a writ of mandamus to compel the issuing of said certificate.

By his return to the petition the Secretary of State alleged that long prior to the application of the relators to become incorporated in the State of Illinois under the name “National Liberty League,” there was incorporated in Illinois a society by the name of “National Liberty Legion,” with its principal office in the city of Chicago, and that said corporation is now active and doing business in said city; that the names “National Liberty League” and “National Liberty Legion” are so nearly identical, that should a corporation be organized under the name of “National Liberty League” it would result in confusion in keeping the records in the office of the Secretary of State and in the transaction of business by such corporation with the public and with that office; that the National Liberty Legion has acquired a proprietary right in that name of which it cannot be lawfully divested and in the enjoyment of which it may not be lawfully interfered with or obstructed; that the relators herein have caused to be incorporated under the laws of the District of Columbia a corporation under the name of “National Liberty League,” and that corporation is now transacting business under the Charter granted to it by the District of Columbia.

There is a great similarity between the names “National Liberty Legion” and “National Liberty League,”—so much so that one might easily be taken for the other in the distribution of mail and in the transaction of business with the public. The National Liberty Legion is already incorporated under the laws of Illinois and is doing business in the same city where the relator desires to establish its principal office. Having been incorporated under the name of “National Liberty Legion” it is entitled to protection in the use of that name, and the State should not license another corporation by the same name or one so similar that it might reasonably be taken for the other. A corporation has such a property right in its corporate name, whether organized for pecuniary, profit or not, as a court of equity will protect by enjoining the use by another company of the same name or one so similar as to mislead the public. International Committee Y. W. C. A. v. Y. W. C. A. of Chicago, 194 Ill. 194, and cases there cited.

The writ of mandamus has always been regarded as one • of the highest writs known to our system of jurisprudence, and it only issues where there is a clear legal right to be enforced or a duty which ought to be performed. It is never issued in doubtful cases.. (People v. Salomon, 46 Ill. 415; People v. Trustees of Schools, 86 id. 613; People v. Town of Oldtown, 88 id. 202.) The award of this writ, even in cases where the relator has an undoubted legal right, is in the wise judicial discretion of the court. This doctrine was declared in the second mandamus case that was ever heard in this court. It was the case of People ex rel. v. Forquer, Breese, 104. It was there said by Smith, J. (p. 120) : “If the right had been established as a perfect legal right, and it has been violated, our laws must afford a remedy. But in the case of a mandamus there are cases where this may have been shown yet the court will not grant the writ. It is certainly a sound legal principle that cases may arise where the court will not grant a mandamus when the granting thereof will, in a collateral manner, decide questions of importance between persons who are not parties to the proceedings and have had no notice and opportunity to interpose their defense, or where it will be attended with manifest hardships and difficulties. And it has been further decided in the court of King’s Bench, that courts are not bound to grant writs of mandamus in all cases where it may seem proper, but may exercise a discretionary power as well in granting as refusing, as where the end of it is merely a private right.”

The above doctrine has never been departed from in this State but has often been reiterated. If this mandamus is awarded this court might be put in the absurd position of being required to sustain an injunction against the use of the name which it has compelled the Secretary of State, by mandamus, to authorize. The Secretary of State will not be required, by mandamus issuing out of this court, to issue a certificate of incorporation when it is plainly apparent that the effect will be to mislead the public in dealing with such corporation.

The writ will be denied.

WHt denied.