Opinion.
SPEER, J.
Certain officers of the Arabia Temple of the Ancient Arabic prder of Nobles of the Mystic Shrine for North America filed in the district court of Harris county their application for an injunction against the officers and members of Doric Temple of the Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine of North and South America and its jurisdictions to restrain the defendants from using the by-laws, regalia, paraphernalia, emblems, pins, and passwords of the complainants. The complainants constituted the local organization of the white shrine, whereas the defendants constituted the local organization of the negro shrine. Dater, the national organizations of the respective shrines were allowed to intervene in the proceeding. There was a trial before the court,' who filed very complete findings of fact (set out in the margin so far as pertinent to the issue discussed), upon which he rendered judgment against the colored shrine according to the prayer of complainants’ petition, and upon appeal by the defendants the Court of Civil Appeals for the First District affirmed that judgment. 273 S. W. 874.
The Supreme Court, in view of the opinion of Chief Justice White in the case of Creswill v. Grand Lodge Knights of Pythias of Georgia, 225 U. S. 246, 32 S. Ct. 822, 56 L. Ed. 1074, granted the writ of error- herein to review the decision.
The findings of fact by the trial court' which have been approved by the Court of. Civil Appeals are conclusive upb'n us'and are entirely sufficient to support the judgments of both courts, unless it can be said there is no evidence to support the finding that defendants in error were not' guilty of such laches as to preclude their right to injunc-tive relief. We have no difficulty in holding that all findings of fact other than this one are amply supported by the evidence; that is, there is abundant evidence upon each issue as a matter of law to authorize such finding. We shall therefore confine ourselves to a consideration of the findings upon the issue of laches. In doing this, we will endeavor, of course, to' respect the exclusive right of the lower courts to determine finally as to the existence of pure facts, but will consider the subject only for the purpose of determining what legal result will follow the facts as found.
In order to fully appreciate the decision in Creswill v. Grand Lodge, it is well to consider the underlying reason for refusing a plaintiff relief by injunction, where such relief is denied upon the ground of laches. Of course, it is most elementary that, injunction itself being an equitable proceeding, a plaintiff must come into court with clean hands and, moreover, in having his relief, he must not himself do an injustice under all the circumstances. Logically, laches alone of the complainant constitutes no obstacle whatever as an equitable reason for denying injunctive relief against a continuous wrong. Laches may be of such duration, and the circumstances may be of such character, as to evidence assent or acquiescence upon the part of the plaintiff in the things complained of, and for that reason preclude relief. But this is not because of any equity in favor of the defendant, it is rather for want of equity with the complainant. This is .no new doctrine; authorities perhaps from every state in the Union can be cited in support of it. We will content ourselves with referring to some of the decisions, which show this to be the rule in the United States Supreme Court.
In McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828, it is said:
“Equity courts will not, in general, refuse an injunction on account of delay in seeking relief, where the proof of infringement is clear, even though the delay may be such as to preclude the party from any right to an account for past profits.”
And in Menendez v. Holt, 128 U. S. 514, 9 S. Ct. 143, 32 L. Ed. 526, Chief Justice Fuller for the court said:
“Counsel in conclusion earnestly contends that whatever rights appellees may have had were lost by laches; and the desire is intimated that we should reconsider McLean v. Fleming, 96 U. S. 245 [24 L. Ed. 828] so far as it was therein stated that even though a complainant were guilty of such delay in seeking relief up■on infringement as to preclude him from obtaining an account of gains and profits, yet, if he were otherwise so entitled, an injunction against future infringement might properly be awarded. We see no reason to modify this general proposition, and we do not find in, the facts as disclosed by the record before us anything to justify us in treating this case as an exception.
[180]*180“Tie intentional use of another’s trade-mark is a fraud; and when the excuse is 'that the owner permitted such use, that excuse is disposed of by affirmative action to put a stop to it. Persistence then in the use is not innocent; and the wrong is a continuing one, demanding restraint by judicial interposition when properly invoked. Mere delay or acquiescence cannot defeat the remedy by injunction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself. Hence, upon an application to stay waste, relief will not be refused on the ground that, as the defendant had been allowed to cut down half of the trees upon the complainant’s land, he had acquired, by that negligence, the right to cut down the remainder, Attorney General v. Eastlake, 11 Hare, 205; nor will the issue of an injunction against the infringement of a trade-mark be denied on the ground that mere procrastination in seeking redress for depredations had deprived the true proprietor of his legal right. Fullwood v. Fullwood, 9 Ch. D. 176. Acquiescence to avail must be such as to create a new right in the defendant. Rodgers v. Nowill, 3 DeG. M. & G. 614. Where consent by the owner to the use of his trade-mark by another is to be inferred from his knowledge and silence merely, ‘It lasts no longer than the silence from which it springs; it is, in reality, no more than a revocable license.’ ”
And in McIntire v. Pryor, 173 U. S. 38, 19 S. Ct. 352, 43 L. Ed. 606, the following language of a prior decision is quoted with approval :
“The question of laches does not depend, as does the statute of limitation, upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under all the circumstances of the particular case, plaintiff is chargeable with a want of due diligence in failing to institute proceedings before he did.”
So, in Saxlehner v. Eisnor & Mendelson Co., 179 U. S. 19, 21 S. Ct. 7, 45 L. Ed. 60, a very luminous discussion of the subject, it is said:
“But in cases of actual fraud, as we have repeatedly hold, notably in the recent case of McIntire v. Pryor, 173 U. S. 38, 19 S. Ct. 352, 43 L. Ed.
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Opinion.
SPEER, J.
Certain officers of the Arabia Temple of the Ancient Arabic prder of Nobles of the Mystic Shrine for North America filed in the district court of Harris county their application for an injunction against the officers and members of Doric Temple of the Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine of North and South America and its jurisdictions to restrain the defendants from using the by-laws, regalia, paraphernalia, emblems, pins, and passwords of the complainants. The complainants constituted the local organization of the white shrine, whereas the defendants constituted the local organization of the negro shrine. Dater, the national organizations of the respective shrines were allowed to intervene in the proceeding. There was a trial before the court,' who filed very complete findings of fact (set out in the margin so far as pertinent to the issue discussed), upon which he rendered judgment against the colored shrine according to the prayer of complainants’ petition, and upon appeal by the defendants the Court of Civil Appeals for the First District affirmed that judgment. 273 S. W. 874.
The Supreme Court, in view of the opinion of Chief Justice White in the case of Creswill v. Grand Lodge Knights of Pythias of Georgia, 225 U. S. 246, 32 S. Ct. 822, 56 L. Ed. 1074, granted the writ of error- herein to review the decision.
The findings of fact by the trial court' which have been approved by the Court of. Civil Appeals are conclusive upb'n us'and are entirely sufficient to support the judgments of both courts, unless it can be said there is no evidence to support the finding that defendants in error were not' guilty of such laches as to preclude their right to injunc-tive relief. We have no difficulty in holding that all findings of fact other than this one are amply supported by the evidence; that is, there is abundant evidence upon each issue as a matter of law to authorize such finding. We shall therefore confine ourselves to a consideration of the findings upon the issue of laches. In doing this, we will endeavor, of course, to' respect the exclusive right of the lower courts to determine finally as to the existence of pure facts, but will consider the subject only for the purpose of determining what legal result will follow the facts as found.
In order to fully appreciate the decision in Creswill v. Grand Lodge, it is well to consider the underlying reason for refusing a plaintiff relief by injunction, where such relief is denied upon the ground of laches. Of course, it is most elementary that, injunction itself being an equitable proceeding, a plaintiff must come into court with clean hands and, moreover, in having his relief, he must not himself do an injustice under all the circumstances. Logically, laches alone of the complainant constitutes no obstacle whatever as an equitable reason for denying injunctive relief against a continuous wrong. Laches may be of such duration, and the circumstances may be of such character, as to evidence assent or acquiescence upon the part of the plaintiff in the things complained of, and for that reason preclude relief. But this is not because of any equity in favor of the defendant, it is rather for want of equity with the complainant. This is .no new doctrine; authorities perhaps from every state in the Union can be cited in support of it. We will content ourselves with referring to some of the decisions, which show this to be the rule in the United States Supreme Court.
In McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828, it is said:
“Equity courts will not, in general, refuse an injunction on account of delay in seeking relief, where the proof of infringement is clear, even though the delay may be such as to preclude the party from any right to an account for past profits.”
And in Menendez v. Holt, 128 U. S. 514, 9 S. Ct. 143, 32 L. Ed. 526, Chief Justice Fuller for the court said:
“Counsel in conclusion earnestly contends that whatever rights appellees may have had were lost by laches; and the desire is intimated that we should reconsider McLean v. Fleming, 96 U. S. 245 [24 L. Ed. 828] so far as it was therein stated that even though a complainant were guilty of such delay in seeking relief up■on infringement as to preclude him from obtaining an account of gains and profits, yet, if he were otherwise so entitled, an injunction against future infringement might properly be awarded. We see no reason to modify this general proposition, and we do not find in, the facts as disclosed by the record before us anything to justify us in treating this case as an exception.
[180]*180“Tie intentional use of another’s trade-mark is a fraud; and when the excuse is 'that the owner permitted such use, that excuse is disposed of by affirmative action to put a stop to it. Persistence then in the use is not innocent; and the wrong is a continuing one, demanding restraint by judicial interposition when properly invoked. Mere delay or acquiescence cannot defeat the remedy by injunction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself. Hence, upon an application to stay waste, relief will not be refused on the ground that, as the defendant had been allowed to cut down half of the trees upon the complainant’s land, he had acquired, by that negligence, the right to cut down the remainder, Attorney General v. Eastlake, 11 Hare, 205; nor will the issue of an injunction against the infringement of a trade-mark be denied on the ground that mere procrastination in seeking redress for depredations had deprived the true proprietor of his legal right. Fullwood v. Fullwood, 9 Ch. D. 176. Acquiescence to avail must be such as to create a new right in the defendant. Rodgers v. Nowill, 3 DeG. M. & G. 614. Where consent by the owner to the use of his trade-mark by another is to be inferred from his knowledge and silence merely, ‘It lasts no longer than the silence from which it springs; it is, in reality, no more than a revocable license.’ ”
And in McIntire v. Pryor, 173 U. S. 38, 19 S. Ct. 352, 43 L. Ed. 606, the following language of a prior decision is quoted with approval :
“The question of laches does not depend, as does the statute of limitation, upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under all the circumstances of the particular case, plaintiff is chargeable with a want of due diligence in failing to institute proceedings before he did.”
So, in Saxlehner v. Eisnor & Mendelson Co., 179 U. S. 19, 21 S. Ct. 7, 45 L. Ed. 60, a very luminous discussion of the subject, it is said:
“But in cases of actual fraud, as we have repeatedly hold, notably in the recent case of McIntire v. Pryor, 173 U. S. 38, 19 S. Ct. 352, 43 L. Ed. 606, the principle of laches has but an imperfect application, and delay even greater than that permitted by the statute of limitations is not fatal to plaintiff’s claim. We have only to refer to the cases analyzed in that-opinion for this distinguishing principle that, where actual fraud is proved the court will look with much indulgence upon the circumstances tending to excuse the plaintiff from a prompt assertion of his rights. Indeed, in a case of an active and continuing fraud like this, we should be satisfied with no evidence of laches that did not amount to proof of assent or acquiescence.”
The court took occasion to again approve the cases of McLean v. Fleming and Menendez v. Holt, supra.
The important part that laches plays in preventing injunctive relief is found in .its consideration along with other circumstanc- ' es, produced usually, if not by, at least in some measure through, the inactivity of the complainant. As, for instances, the building up of a valuable business, the- incurring of liabilities, or the interposition of important property rights. Logically, there can never be any equity in favor of a defendant entitling him to continue the perpetration of a wrong upon no other excuse than that the plaintiff had hitherto not complained. The underlying reason that controls in such matters is, and should be: Would the granting of an injunction under all the circumstances of the particular case be ineqmtable?
In Menendez v. Holt, supra, holding as we have shown that mere delay will not prevent injunctive relief, the court was particular to point out:
“There is nothing here in the nature of an estoppel, nothing which renders it ineqmtable [italics ours] to arrest at this stage any further invasion of complainants’ rights.”
And in Creswill v. Grand Lodge, we take it to be the very gist of the decision is embraced in the following:
“The facts, however, which we have stated concerning the establishment of the order, its lodgment in Georgia, its vast expansion, its years of duration and its volume of transactions were not disputed in any particular whatever, and therefore leave no room for any other but the legal conclusion of laches. This, we think, in the most conclusive way demonstrates the violation of the elementary principles of equity which would result from the enforcement of the injunction which the court awarded.”
The court says the principle applied is that of a legal conclusion of laches, but clearly it means laches, accompanied by circumstances which render an injunction inequitable. Laches is merely one of the elements entering into the consideration. The answering equity which precludes relief is the “new right in defendant,” referred to by Chief Justice Fuller in Menendez v. Holt. In no other way is the decision to be harmonized with the other well-considered cases of that court above noticed, and it is to be observed that that court had no thought of holding contrarywise to any of those cases. Indeed, it cites with approval the Saxlehner v. Eisner Case. There is no shadow of turning in the Supreme Court decisions upon this question.
When the delay is for such time as under all the circumstances to show assent or acquiescence on the part of the plaintiff, to be sure equity will not interfere. Indeed, such assent or acquiescence, irrespective of time, would preclude relief.
In determining whether under all the circumstances the equities are with the complainant or with the defendant, it will not be required that all the equities should be one way or the other. There should be a [181]*181.balancing of tbe respective rights and hardships of the parties, and a careful consideration of the relative inconveniences or injuries which the parties will sustain by the granting or refusal of the application for an injunction. In recognition of this principle, it has often been held that where the issuance of an injunction will cause great injury to defendant and will confer little or no benefit in comparison upon complainant, the writ will be refused, and, conversely, where a wrong against complainant is clear, and his injuries great, the writ will issue, notwithstanding it will produce some hardship upon the defendant. Nevertheless, it is also clear that where there is a violation of a plain right of the complainant and his injury is.regarded as irreparable, he is ordinarily entitled to an injunction, even though the injury is rel.atively small as compared with the injury which the defendant will suffer as a result of the issuance of the writ. 32 C. J. p. 78, § 64.
It will be seen that most of the Supreme Court cases above discussed are trade-name or trade-mark cases. In the Creswill v. Grand Lodge K. of P. Case the court assumed that the rules applicable to trademark and trade-name cases were likewise applicable to the question here being considered. We are of the opinion the rules should apply to this character of case with even greater force than in the trade-mark cases. The reason is plain. In the trade-mark and trade-name and unfair competition eases, the only injury to be suffered by the complainant is, in the nature of things, a commercial loss, the pecuniary value of whiph is easy of ascertainment. An important element of the injury in a ease like this, if not the greatest element, is an injury in respect to a matter not of ordinary pecuniary value, capable of easy ascertainment, but one of first consideration to the complainants, and of incalculable worth as ordinary men account values. We refer to the right of the complainants to maintain their order with that degree of exclusiveness as will limit its membership, not only to Masons of high standing, but to white persons only. It cannot be denied that one of the chief values, and one of the strongly attractive features, of complainants’ order consists in the fact that none but white males are entitled to its benefits. In thus restricting the rights of membership, the order has violated no legal right of any person excluded.- It is not a question of ethics or moral or religious rights, or even of race discrimination. Nor yet is there any question of equal protection of law involved. The principle is precisely the same as though a society was organized limiting its membership by high tests of learning, skill, or the like. Clearly, the right to maintain such high standards of membership, followed by the consequent honors incident thereto, would be a valuable right capable of protection through the courts. That segregation of the white and black races is not only not unlawful, but may be lawfully enforced, is well settled. Witness the legislation of numerous states authorizing separate schools and other institutions, separate coaches, and the like. Witness further, even, statutes in many of the states, if not most of them, forbidding the intermarriage of blacks and whites. These laws are not in derogation of the fundamental rights of either race, but are. in express recognition of the popular and esteemed value of segregation in social matters. No one will deny that defendant in error shrine, as a charitable and fraternal order, which contemplated membership by white persons only, will be materially affected if negroes are permitted- to wear the identical emblems and-insignia of such order, and when they do so from a fraudulent purpose of appropriating the benefits of the order to themselves, a court of equity is not without power to prevent them. The rule would be the same if the facts were reversed and the negroes were complaining.
This is not denying the plaintiffs in error the right to organize any social or fraternal order they may like, at any time they choose, so long as they do not wrongfully appropriate any of those things previously made valuable by the exclusive use of defendants in error. The courts will not hinder discovery, inventions, philanthropy, culture, or any other laudable human endeavor. But equity frowns upon unfair methods. The world applauds one who accomplishes a worth-while thing, but despises a faker. So with a court of equity within its sphere.
Again reverting to Creswill -v. Grand Lodge, and by way of making clear the controlling feature of that ease, we quote from the opinion the uncontradicted facts:
“ * * * The membership of the order [the defendant co’-ored lodge] throughout the United States aggregated 300,000; rhat there had been collected and disbursed to the members of the order between July 1, 1306, and July 1, 1907. more than $500,000; that the collections in Georgia during'the existence of the order there aggregated $180,232.21; that there had been paid to the widows and orphans of deceased members in Georgia $148,680, and that the collections in Georgia aggregated $51,000 a year, excluding the expense of burying their dead which was $9,000 more. * * * ”
It is evident, then, the decision turned upon tbe conclusion that, in view of tbe facts stated, it would be meqmta'ble to permit tbe injunction. In tbe present case no sucb state of facts exists. Tbe established facts are that tbe order of tbe defendants in error has continuously existed and been in. active and progressive- operation since September, 1872, during wbicb time it has organized throughout North America and within tbe [182]*182islands under its jurisdiction 156 temples, each and all of which are- under its jurisdiction and have a membership of approximately 600,000; that said order and each and all of its temples have been continuously active and in existence throughout North America and the islands under its jurisdiction since said date, and been actively engaged in fraternal and charitable work and the accumulation of property for such purposes during all of said time, amounting to hundreds of thousands-of'dollars; that notwithstanding the existence of plaintiffs in error for more than 30 years, the entire membership throughout North America is approximately of not more than 9,000, and the property which it has accumulated is comparatively small in value to that of defendants in er- • ror. These facts being conclusively established, there is no such case as that of Cres-will v. Grand Lodge K. of P., where the equities of the defendant were such as to make plaintiff’s laches an insuperable objection to injunctive relief. The cases are to be contrasted — not compared. Here there is not that “new right in- the defendants,” that “vast expansion” of the order, that “volume of transactions” of business, held by the Supreme Court to estop the complainants, or to render inequitable the enforcement of an injunction.
Very little can be added to the well-con- ■ sidered opinion of the Court of Civil Appeals. We think its conclusions are sound upon every question discussed, and that the judgment is wise and in no respect contrary to the holding of our Supreme Court in Creswill v. Grand Lodge K. of P.
We therefore recommend that the judgments of the trial court and- of the Court of Civil Appeals be in all respects affirmed.
CURETON, C. J.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.