#### The State of Ohio, ex rel. The Great Camp, Knights of Modern Maccabees, *v.*Vorys, Superintendent of Insurance, etc.

*Association organized and incorporated in another state—Has right to be admitted in Ohio, when—Conditions of sections 3631-13 and 3631-16, Revised Statutes—Mandatory upon insurance superintendent—Law concerning similarity in names.*

Where an association is organized or incorporated in another state, province or territory, under laws which provide for such an association operating within the description, in substance, as. set forth in section 3631-11, Revised Statutes, and is shown by-certificate to be authorized to do business in that state, and is not now doing business within this state, such association has the right to be admitted to do business within this state, when it shall have filed with the superintendent of insurance of this, state a duly certified copy of its charter and articles of association, a copy of its constitution or laws certified by its secretary *57or corresponding officer, and an appointment of the superintendent of insurance of this state as the person upon whom process may be served, as provided in section 3631-13, Revised. Statutes, and under such circumstances, section 3631-16, Revised Statutes, is mandatory upon the superintendent of insurance to issue to such association a certificate authorizing it to do. business within the state of Ohio.

(No. 8253

Decided October 13, 1903.)

In Mandamus.

The relator asks this court to issue a writ of mandamus commanding the defendant to issue to the relator a permit in writing to do business in the state of Ohio as a fraternal beneficiary association, under the provisions of the statute in such case made and provided. The relator alleges that it is a fraternal beneficiary association, originally incorporated in 1881 under the laws of the state of Michigan, and re-incorporated in 1893 under act number 119 of the public-acts of 1893 of the laws of the state of Michigan. It. also avers that it is such a fraternal beneficiary association as is declared and defined and authorized to' be organized and to be permitted to do business in this, state under section 3631-11, Revised Statutes of the state, upon the relator’s compliance with the conditions prescribed by the fraternal beneficiary laws of this state. It is averred that on September 16, 1902, the relator filed with the defendant as superintendent of insurance an application for a permit in writing to-do business in this state, and that the relator filed with the defendant, accompanying said application, a duly certified copy of the relator’s charter and articles of association, a copy of the relator’s constitution and laws duly certified to by its record-keeper and secretary, an appointment of the superintendent of insurance of this state as the person upon whom process may be served, a certificate from the 'commissioner of *58insurance of the state of Michigan that the relator is authorized to do business in the state of Michigan, in which it is incorporated, and a financial statement -of the business of relator for the year ending December 31, 1901; and that the defendant, on the presentation of said documents and application, refused and still refuses to issue to the relator such permit in writing.

The defendant by his answer, in his first defense, .admits, that the relator was re-incorporated under act number 119 of the public acts of 1893 of the laws of •the state of Michigan; that he is, and was at the time mentioned in the petition, the duly appointed, qualified, and acting superintendent of insurance of the .state of Ohio; and that on September 16, 1902, the relator filed with him an application for a permit in writing to do business in this state as a fraternal beneficiary association, a duly certified copy of relator’s charter and articles of association, a copy of its constitution and laws certified to by its record-keeper .and secretary, an appointment of the superintendent of insurance of this state as the person upon whom process may be served, a certificate of the commissioner of insurance of the state of Michigan, reciting that relator is authorized to do business in the state .of Michigan, a financial statement of its business for the year ending December 31, 1901, a copy of its application for membership, and copy of benefit certificate, and that the relator tendered the defendant the ■statutory fee of $25 for such permit; and also admits that defendant at the time of said application refused and still refuses to issue such permit to the relator, and he denies all the allegations of the peti-" tion not herein expressly admitted.

For a second defense the defendant, in substance, *59sets out that it appears in the copy of the articles of association so filed with him on September 16, 1902, that the name of this corporation shall be The Great Camp of the Knights of the Modern Maccabees, etc., setting out in detail the laws and rules and regulations of the Great Camp of the Modern Maccabees, and averring that the provisions in the copy of the articles of incorporation, and constitution and laws of the relator so filed with the defendant disclose that the relator is not a fraternal beneficiary association as defined in section 3631-11, Revised Statutes, in this: That it is not a corporation, society, or association formed, or organized, or carried on for the sole benefit of its members and their beneficiaries, and that while the subordinate tents have a lodge system with ritualistic form of work, the relator does not have a lodge system with ritualistic form of work; and that the relator does not have a representative form of government ; and that the members of camps in Ohio will not have- representation equal to that accorded tents in Michigan, etc:

In his third defense the defendant avers, that at the time of the passage of the act of April 27, 1896, known as the fraternal beneficiary act, being sections 3631-11 to 3631-23, Revised Statutes, there existed a fraternal beneficiary association with ritualistic form of work known as the Supreme Tent of the Knights of the Maccabees of the World; that said association for eleven years prior to the passage of said act had been doing business in the state of Ohio, and has duly filed its annual reports, designated the superintendent of insurance as the person upon whom process may be served; and has, therefore, been at all times, and is now, duly authorized by the superintendent of insurance of this state to continue its business in this *60state in accordance with the provisions of section 3631-11; that by the constitution and laws of the Supreme Tent of the Knights of the Maccabees of the World, great camps are organized in various states and territories of the United States and provinces of Canada; and there is and has been for eighteen years, under the jurisdiction of said Supreme Tent, a Great Camp of the Knights of the Maccabees for Ohio, and under this there have been subordinate tents or lodges established in the state of Ohio. The defendant sets out in detail the similarity in names, laws, rules, and regulations between the said Supreme Tent of the Knights of the Maccabees of the World and the relator, and further says that if the relator is permitted to transact business in the state of Ohio, in case an action is brought against it and process served on the defendant by virtue of relator’s appointment of him as its attorney for that purpose, it will have the same legal force and vitality as if served on the relator, and under the provisions of section 3631-15, Revised Statutes, the defendant, when served with any process, is required to notify the association sued of such suit and forward copies to it, careful action being imposed by statute on defendant in order to guard the rights of the association similar to the relator, now doing business in Ohio, and also of the relator, if it be permitted to do business in this state j and that to permit the relator to do business in this state under a name and title so similar to that of another beneficiary organization, will lead to confusion in the defendant’s department, and in the public mind, as to the identity of the person sued and for whom the defendant is acting and receiving service, and that for the protection of the defendant against liability to error in the transaction of his busi*61ness, the relator ought not to he permitted to transact business under a name and title which would produce ■confusion and uncertainty. Wherefore he prays that the petition and supplemental petition be-dismissed at costs of relator, The Great Gamp of the Knights of the Modern Maccabees, and that he may go hence without day and costs.

The relator demurred to the third defense of the answer for the reason that the same does not contain allegations sufficient to constitute a defense to the petition; and for reply to the second defense of the answer, makes certain specific denials.

Upon motion, the Honorable E. B. Dillon was appointed master commissioner to take evidence and report his findings of fact and conclusions of law in the case; and on the twenty-seventh of April, 1903, the said master filed the evidence taken by him and ■submitted by the parties in this court, together with his report. The conclusions of law in said report are :as follows:

“First. That the relator is a fraternal beneficiary association, as the same is described and defined in ; section 1 of the fraternal beneficiary act, 92 O. L., 360 (3631-11).

“Second. That the relator has fully and completely ■complied with the provisions of said act, 92 O. L., 360 (3631-11 to 3631-23).

' “Third. That the demurrer of plaintiff to the third ■ defense of the defendant be sustained.

“Fourth. That the superintendent of insurance of the state of Ohio is not vested with an absolute discretion in the exercise of the functions of his office with reference to the admission or rejection of foreign insurance companies desiring to do business in this ;state; but on the other hand, that where he is in *62manifest error in regard to the facts or his construction of the law, he may be compelled by mandamus to act.

“Fifth. That a peremptory writ of mandamus issue against the defendant and in favor of the relator as prayed for in the petition.”

The relator filed a motion to confirm the report of the master and enter judgment as prayed for in the petition. The defendant filed exceptions to the findings of fact and conclusions of law of the master, and moved to vacate and set aside the judgment, and for judgment in his behalf.

*Mr. J. B. Mcllwain*and *Mr. Fred G. Rector,*for relator, cited and commented upon the following authorities :

16 Am. & Eng. Ency. Law, 897; *Woodmen of the World*v. *Gilliland,*67 Pac. Rep., 485; *Commonwealth ex rel.*v. *Beneficial Assn.,*18 Atl. Rep., 1112; Niblack on Frat. Ins., sec. 478; 1 Bacon on Frat. Ins., secs. 2, 3, 4, 48, 61, 69, 79, 91, 116, 118, 74; *Canfield*v. *Great Camp, K. O. T. M.,*49 N. W. Rep. 875; *Hembeau*v. *Great Camp, K. O. T. M.,*59 N. W. Rep., 417; *Saunders*v. *Robinson,*10 N. E. Rep., 816; 3 New Ency. Law, 1060, 1068, 1078; Black’s Law Dict., 1025, 1026; Cooley on Const. Law, 194; *People*v. *Board of Supervisors,*138 N. Y., 95; s. c. 33 N. E. Rep., 827; 2 Bouvier’s Law Diet., 416, 892, 893; *State ex rel.*v. *Insurance Co.,*49 Ohio St., 440; *Insurance Co.*v. *Clunie,*88 Fed. Rep., 160; art. 7, sec. 231 (Laws 1892, c. 690); *People ex rel.*v. *Payn,*59 N. Y. S., 851; *State ex rel.*v. *Root,*54 N. W. Rep., 33; *Life Ins. Co.*v. *Boyle,*82 Fed. Rep., 705; *Insurance Co.*v. *McNall,*81 Fed Rep., 888; *Life Ins. Co.*v. *Howland,*48 Atl. Rep., 435; *63*People ex rel.*v. *Payn,*55 N. E. Rep., 849; *People ex rel.*v. *Van Cleave,*55 N. E. Rep., 698; *Boston Rubber Shoe Co.*v. *Boston Rubber Co.,*149 Mass., 436; 7 Am. & Eng. Ency. Law, 690; *Supreme Lodge K. P.*V. *Improved Order K. P.,*113 Mich., 133; s. c., 71 N. W. Rep., 470; *McGlynn*v. *Post,*21 Abb. N. C., 97; *Association*v. *Munday,*21 Abb. N. C., 99; *Muller*v. *Life Ins. Co.,*60 N. E. Rep., 958; *Mygatt*v. *Insurance Co.,*21 N. Y., 52; *Insurance Co.*v. *Woolen Factory,*3 Ohio St., 348; *Insurance Co.*v. *Hoge, 2*How., 35; 23 Am. & Eng. Ency. Law (2 ed.), 363; *State ex rel.*v. *Chase,*5 Ohio St., 529; *State ex rel.*v. *Burgoyne,*7 Ohio St., 154; *State ex rel.*v. *Jones,*17 Ohio St., 148; *Commissioners*v. *Hunt,*33 Ohio St., 169; *State ex rel.*v. *Moore,*42 Ohio St., 103; *State ex rel.*v. *Acherman,*51 Ohio St., 163; *Cross*v. *Armstrong,*44 Ohio St., 613*State ex rel.*v. *Insurance Co.,*47 Ohio St., 167; *State ex rel.*v. *Insurance Co.,*49 Ohio St., 440; *Vorys*v. *Connell,*67 Ohio St., 15; *People ex rel.*v. *Insurance Co.,*153 N. Y., 25; s. c., 38 N. E. Rep., 752; *Stevens*v. *Pratt,*101 Ill., 206; *Cowell*v. *Springs Co.,*100 U. S., 55; *Christian Union*v. *Yount,*101 U. S., 352; *Insurance Co.*v. *Welch,*29 Kan., 672; Bacon on Ben. Soc. and Ins., secs. 11, 74, 84, 85, 122, 144, 157, 161, 170; *Goodman*v. *Jedidjah Lodge,*9 Atl. Rep., 13; *Sheu*v. *Grand Lodge,*4 O. F. D., 184; 17 Fed. Rep., 214; 1 Thorpe’s Const. Hist., 346, 351, 354, 417; Mill on Rep. Gov., 86, 88; Guizot’s Works on Rep. Gov. (pt. 2), chap. 14, 15, 16; 1 Bryce’s Am. Commonwealth, 444, 445, and vol. 1, chap. 39; *Railway Co.*v. *Moore,*33 Ohio St., 384; *Peterson*v. *Roach,*32 Ohio St., 374; *Mitchell*v. *Treasurer,*25 Ohio St., 143; *Hydraulic Co.*v. *Railroad Co.,*29 Ohio St., 341; sec. 3628, Rev. Stat.

*64*Mr. J ohn M. Sheets,*attorney general, and *Mr. J. E. .Sater,*for defendant, cited and commented upon the following authorities:

*State*v. *Life Assn.,*38 Ohio St., 281; *Chicago Mutual*v. *Hunt,*127 Ill., 257; *State ex rel.*v. *Crites,*48 Ohio St., 465; Merrill on Mandamus, sec. 31; *Vorys*v. *State ex rel.,*67 Ohio St., 15; *State ex rel.*v. *Moore,*42 Ohio St., 103; *State ex rel.*v. *Insurance Co.,*49 Ohio St., 440; *State ex rel.*v. *Chapman,*67 Ohio St., 1; *Dalton*v. *State,*43 Ohio St., 652; *State ex rel.*v. *Ackerman,*51 Ohio St., 163; *Lessee of Allen*v. *Parish,*3 Ohio, 193; *Cross*v. *Armstrong,*44 Ohio St., 621; *State ex rel.*v. *Life Ins. Co.,*47 Ohio St., 167; *People*v. *Van Cleave,*183 Ill., 330; 55 N. E. Rep., 698; *People ex rel.*v. *Payn,*59 N. Y. S., 851; *People*v. *Payn,*161 N. Y., 229; 55 N. E. Rep., 849; *State ex rel.*v. *Root,*83 Wis., 667 (54 N. W. Rep., 33); *Life Ins. Co.*v. *Boyle,*82 Fed. Rep., 705; Laws of Kansas, 712, 713; *Insurance Co.*v. *McNall,*81 Fed. Rep., 888; *Life Ins. Co.*v. *Howland,*73 Vt., 1; 48 Atl. Rep., 435; *Sup. Council Am. Legion of Honor*v. *Perry,*140 Mass., 580; *Briggs*v. *Earl,*139 Mass., 473; *Hogg*v. *Manufacturing Co.,*5 Ohio, 416; *Hutchinson*v. *Thompson,*9 Ohio, 62; *Perry*v. *Torrence,*8 Ohio, 522; *Giddings*v. *Secretary of State,*93 Mich., 7; *State ex rel.*v. *Cunningham,*81 Wis., 440; s. c., 83 Wis., 90; *Ohio ex rel.*v. *Dudley,*1 Ohio St., 442; 1 Story on the Const. (5 ed.), sec. 635; Ordronaux’s. Const. Leg., 96; Andrews’ Man. on Const. (Rey.), 235; Yon Holtz on Const. Law, 238, 240; Cooley’s Prin. of Const. Law, 194; Farrar’s Man. on Const., 223, 224; 1 Story’s Com., 269; Federalist No. 39; Declaration of Rights, 1st Congress, Oct. 14, 1774; *People*v. *Supervisors,*138 N. Y., 95; *State*v. *Wrightson,*56 N. J. Law, 126; *65*Board of Supervisors*v. *Blacker,*92 Mich., 638; *Daggett*v. *Hudson,*43 Ohio St., 561; *Luther*v. *Borden,*7 How., 42; 6 Am. & Eng. Ency. Law, 922; Madison in Federalist, No. 38; *Monroe*v. *Collins,*17 Ohio St., 666; *State*v. *Smith,*44 Ohio St., 365; *State*v. *Williams,*75 N. C., 134; *Price*v. *Knights of Honor,*68 Tex., 361; *Schonfield*v. *Turner,*75 Tex., 325; *State ex rel.*v. *Peters,*43 Ohio St., 629; *State*v. *Hipp,*38 Ohio St., 199; *State ex rel.*v. *Judges,*21 Ohio St., 11; 3 Am. & Eng. Ency. Law (2 ed.), 1046, 1064; *Kennan*v. *Rundle,*81 Wis., 222; *Clevenger*v. *Life Ins.*Co., 2 Dak., 124; *Saunders*v. *Robinson,*10 N. E. Rep., 816; 144 Mass., 306; Cook on Corp., sec. 929, p. 2301; *Telegraph Co.*v. *Mayer,*28 Ohio St., 542; *State*v. *Moore,*38 Ohio St., 7; *Floyd*v. *Loan & Invest. Co.,*54 L. R. A., 536; 1 Waterman on Corp., 546; *Supreme Lodge K. P.*v. *Common Order K. P.,*113 Mich., 137; Spelling on Inj., sec. 1372; *People ex rel.*v. *Assessors,*137 N. Y., 201; *Higgins*v. *Soap Co.,*144 N. Y., 462; *Sterling Remedy Co.*v. *Manufacturing Co.,*80 Fed. Rep., 105; Marshall on Priv. Corp., 101; *State ex rel.*v. *McGrath,*92 JVto., 355; *Battle & Co.*v. *Finlay,*45 Fed. Rep., 796; *Blackwell*v. *Armistead,*3 Hughes, 163; *McLean*v. *Fleming,*6 Otto, 245; *Buckland*v. *Rice,*40 Ohio St., 526; *Walton*v. *Crowley,*31 Blatch., 40; High on Inj., sec. 1067; 21 L. R. Jr., 216; 51 L. R. Oh., 104; 50 L. R. Ch., 253; 25 Hun, 398; *Hohner*v. *Gratz,*52 Fed. Rep., 871; *State*v. *Citizens’ Ben. Assn.,*6 Mo. App., 163; 3 Am. & Eng. Ency. Law (2 ed.), 1050, note; *Insurance Co.*v. *Trust Co.,*123 Fed. Rep., 534; Niblack on Ben. Soc., pp. 17, 39, 189; secs, 3, 6, 7, 19, 97; Bacon on Ben. Soc., secs, 1a, 2, 3, 14, 54, 84, 85; Thompson on Corp., secs. 297, 298, 299, 7876, 7882, 7884, 7885, 7886, 8183, 8185, 8192; secs. 3631-11 to 3631-23, Rev. Stat.

*66Davis, J.

Section 6 of the “Act regulating fraternal beneficiary societies, orders, and associations,” passed April 27, 1896 (92 O. L., 360; section 3631-16, Revised Statutes),is mandatory upon the superintendent of insurance to issue to any association, having the right to do business within this state, as provided by said act, a permit and certificate authorizing such; association to do business within this state. Section 3 of the said act (section 3631-13, Revised Statutes,) requires that any association operating within the description as set forth in section 1 of the act, organized, under the laws of any other state, and not doing business within this state, *shall he admitted*to do business Avithin this state, *token*it shall have filed with the superintendent of insurance a duly certified copy of its charter and articles of association, a. copyof its. constitution or laws certified by its secretary, or corresponding officer, and an appointment of the superintendent of insurance of this state as the person upon Avhom process may be served as provided. -In case the laws of the state, etc., in which such association is organized shall provide for such organization, it is also required that such association shall be shown by certificate to be authorized to do business in the state, etc., in which it is incorporated or organized. When all of these requirements are met, the association has “a right to do business within this state, as provided” by said, act and the superintendent of insurance has no option to refuse to issue the permit and certificate. He is not authorized under Pus act to enter into any inquiry in regard to a foreign fraternal beneficiary association applying to be admitted to .do business within this state, except “in case the laws of Such state, province, or territory do not provide for any formal authorization to do business on the part *67of any association.” It appears in the record of this case that the relator is incorporated under the laws of Michigan and is authorized to do business in that state, and is so doing business. It also appears that the statutes of Michigan define and describe a fraternal beneficiary association substantially as it is defined and described in section one of the act of the general assembly of Ohio now under consideration, (section 3631-11, Revised Statutes,) and in almost the same words. It further appears that along with the application of the relator for admission to do business within the state of Ohio as a fraternal beneficiary association, it filed with the defendant as superintendent of insurance, a duly certified copy of the relator’s charter and articles of - association, a copy of the relator’s constitution and laws duly certified by its record-keeper and secretary, an appointment of the superintendent of insurance of this state as the person upon whom process may be served, a certificate by the commissioner of insurance of the state of Michigan that the relator is authorized to do business in the state of Michigan, and a financial statement of the business of the relator for the year ending December 31, 1901, being the year preceding the making of this application. We regard this as a. compliance, in letter and in spirit, with the statute; and therefore hold that the relator has the right to do business within this state as provided in said act, and is entitled to have the permit in writing therefor according to the provisions of section 3631-16, Revised Statutes.

A number of points have been submitted and argued which would be appropriate in an action in equity between rival corporations having similar names, and some which would probably be better addressed to the'' *68legislature; but we do not find the decision of any of ihgse to be essential here.

We have not overlooked the citation of decisions of this court as to the discretionary power of the superintendent of insurance in certain cases. We do not think that these apply to the case in hand for the reasons already stated, and for a further reason. In section one of the act now under consideration (section 3631-11, Revised Statutes), it is enacted that •“such associations shall be *governed by this act,*and shall be *exempt from the provisions of the insurance ¡laws of this state,*and no law hereafter passed shall ■apply to them unless they be expressly designated therein.” So that fraternal beneficiary associations have a law unto themselves, and neither the insurance laws nor the construction thereof are applicable to them unless expressly made so.

Exceptions to the report of the Master overruled, report confirmed, and

*Peremptory writ of mandamus aioarded.*

Burket, C. J., Spear and Price, JJ., concur.

.Shauck, J., dissents.