« ForrigeFortsett »
sas, 123 U. S. 623, 661, 669, 31 L. ed. 205, 210, 213, 8 Sup. Ct. Rep. 273.
A classification cannot be sustained which is based upon a police regulation where the object sought to be accomplished is ostensibly the raising of revenue, and to sustain it would be equivalent to declaring it legal upon a basis and for a reason that does not exist in fact.
Binns v. United States, 194 U. S. 491, 492, 493, 48 L. ed. 1088, 1089, 24 Sup. Ct. Rep. 816; Alaska Pacific Fisheries v. Alaska, 149 C. C. A. 262, 236 Fed. 52; Postal Teleg. Cable Co. v. Taylor, 192 U. S. 64, 72, 48 L. ed. 342, 346, 24 Sup. Ct. Rep. 208; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 105, 43 L. ed. 909, 913, 19 Sup. Ct. Rep. 609; Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 209, 8 Sup. Ct. Rep. 273; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 560, 561, 46 L. ed. 679, 690, 22 Sup. Ct. Rep. 431; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 155, 159, 41 L. ed. 666, 668, 669, 17 Sup. Ct. Rep. 255; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 109, 46 L. ed. 92, 108, 22 Sup. Ct. Rep. 30; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594; American Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 45 L. ed. 102, 21 Sup. Ct. Rep. 43; Austin v. Tennessee, 179 U. S. 343, 344, 45 L. ed. 224, 226, 21-Sup. Ct. Rep. 132; Booth v. Illinois, 184 U. S. 425, 429, 46 L. ed. 623, 625, 22 Sup. Ct. Rep. 425; McLean v. Arkansas, 211 U. S. 539, 547, 548, 53 L. ed. 315, 319, 320, 29 Sup. Ct. Rep.
Atlantic & P. Teleg. Co. v. Philadelphia, 190 U. S. 160, 164, 47 L. ed. 995, 1000, 23 Sup. Ct. Rep. 817; Postal Teleg. Cable Co. v. Taylor, 192 U. S. 64, 72, 73, 48 L. ed. 342, 346, 24 Sup. Ct. Rep. 2908; D. E. Foote & Co. v. Stanley, 232 U. S. 494, 505, 58 L. ed. 698, 702, 34 Sup. A classification, regardless of whether | Ct. Rep. 377; People use of State Bd. of reasonable or logical, cannot be sus- Health v. Wilson, 249 Ill. 195, 35 L.R.A. tained where it is made for the pur- (N.S.) 1074, 94 N. E. 141; State v. pose of prohibiting a business when Moore, 113 N. C. 697, 22 L.R.A. 472, 18 there is an absolute want of authority S. E. 342. to prohibit that business, and such classification is void.
conducting its lawful business does not interfere with the police power of the territory, because that power must be exercised subservient to the Constitution.
Allgeyer v. Louisiana, 165 U. S. 578, 591, 41 L. ed. 832, 836, 17 Sup. Ct. Rep. 427; McLean v. Arkansas, 211 U. S. 539, 547, 548, 53 L. ed. 315, 319, 320, 29 Sup.. Ct. Rep. 206; Coppage v. Kansas, 236 U. S. 1, 59 L. ed. 441, L.R.A.1915C, 960, 35 Sup. Ct. Rep. 240; Lawton v. Steele, 152 U. S. 133, 138, 38 L. ed. 385, 389, 14 Sup. Ct. Rep. 499; Shively v. Bowlby, 152 U. S. 1, 11, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; McCready v. Virginia, 94 U. S. 391, 24 L. ed. 248; Martin v. Waddell, 16 Pet. 376, 10 L. ed. 997; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. & L. S. H. Co. 111 U. S. 746, 757, 28 L. ed. 585, 590, 591, 4 Sup. Ct. Rep. 652; Murphy v. California, 225 U. S. 623, 628, 56 L. ed. 1229, 1232, 41 L.R.A.(N.S.) 153, 32 Sup. Ct. Rep. 697; Adams v. Tanner, 244 U. S. 590, 594, 61 L. ed. 1336, 1343, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973; State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199; State v. Wilson, 101 Kan. 789, L.R.A.1918B, 374, 168 Pac. 679.
A charge imposed for police supervision must bear a relation to the expense of the supervision afforded; otherwise it is not constitutional.
Lawton v. Steele, 152 U. S. 133, 138, 38 L. ed. 385, 389, 14 Sup. Ct. Rep. 499; Tanner v. Little, 240 U. S. 369, 383, 60 L. ed. 691, 701, 36 Sup. Ct. Rep. 379; Knowlton v. Moore, 178 U. S. 41, 109, 110, 44 L. ed. 969, 996, 20 Sup. Ct. Rep. 747; Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283; Const. Law, 12 Am. L. & P. p. 198; Rast v. Van Deman & L. Co. 240 U. S. 342, 357, 60 L. ed. 679, 687, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455.
The want of power of the territorial legislature to prohibit plaintiff from
The territorial legislation and taxes imposed thereby are also contrary to the Alaska Organic Act, because they are not uniform upon the same class of subjects, and are not levied and collected under general laws; the assessments are not according to actual value; in fact, no assessments were made; and the taxes, although levied for territorial purposes, are in excess of 1 per centum per annum of any possible valuation which could be lawfully assessed upon the actual value of the property on which they are levied.
Kehrer v. Stewart, 197 U. S. 60, 65, 49 L. ed. 663, 666, 25 Sup. Ct. Rep. 403; Leloup v. Mobile, 127 U. S. 640, 645,
646, 22 L. ed. 311, 312, 2 Inters. Com. Alaska Pacific Fisheries v. Alaska, 149 Rep. 134, 8 Sup. Ct. Rep. 1380; Ellis v. C. C. A. 272, 236 Fed. 52. Frazier, 38 Or. 462, 53 L.R.A. 454, 458, The power to tax is the power to de63 Pac. 612; Welton v. Missouri, 91 U. stroy. S. 275, 23 L. ed. 347; Brown v. Mary- McCray v. United States, 195 U. S. land, 12 Wheat. 419, 6 L. ed. 678; 26, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, Thompson V. McLeod, 112 Miss. 383,1 Ann. Cas. 561. L.R.A.1918C, 893, 73 So. 193, Ann. Cas. The discrimination against the manu1918A, 674; Re Watson, 17 S. D. 486, facture of meal and oil from a food fish, 97 N. W. 463, 2 Ann. Cas. 321; Pittsburg, like herring (as against the same maC. & St. L. R. Co. v. State, 49 Ohio St. terial produced from salmon offal), 18, 16 L.R.A. 380, 30 N. E. 435; Levi v. would seem to be well justified. Louisville, 97 Ky. 394, 28 L.R.A. 480, Quong Wing v. Kirkendall, 233 U. S. 30 S. W. 973; Reser v. Umatilla County, 59, 56 L. ed. 350, 32 Sup. Ct. Rep. 192. 48 Or. 326, 120 Am. St. Rep. 815, 86 The territory has the power to impose Pac. 595; Henderson v. London & L. Ins. new taxes, and also taxes in addition to Co. 135 Ind. 23, 20 L.R.A. 827, 41 Am. St. those already in force. Rep. 410, 34 N. E. 565; State v. Lake- Alaska Pacific Fisheries v. Alaska, 149 side Land Co. 71 Minn. 283, 73 N. W. C. C. A. 262, 236 Fed. 52. 970; State ex rel. Minces v. Shoenig, 72. The final contentions made by plainMinn. 528, 75 N. W. 711; State v. Whit- tiff in error, to the effect that the imcom, 122 Wis. 110, 99 N. W. 486; State position of the taxes complained of is v. Pennoyer, 65 N. H. 113, 5 L.R.A. 709, contrary to the Organic Act, in that their 18 Atl. 878; St. Louis v. Spiegel, 75 effect is to alter, modify, amend, or reMo. 145; Willis v. Standard Oil Co. 50 peal the Congressional Acts of June 6, Minn. 290, 52 N. W. 652; State v. Moore, 1900, and June 26, 1906, and that the 113 N. C. 697, 22 L.R.A. 472, 18 S. E. taxes imposed under the territorial acts 312; Kiowa County v. Dunn, 21 Colo. are not uniform, and are not levied un185, 40 Pac. 357; Smith v. County Comrs. der general laws, have all been considCt. 117 Ala. 196, 23 So. 141; Livingston ered by the United States circuit court v. Albany, 41 Ga. 21; Chicago v. Collins, of appeals for the ninth circuit, and 175 Ill. 445, 49 L.R.A. 408, 67 Am. St. were disposed of by that court contrary Rep. 224, 51 N. E. 907; Sims v. Jack to the views expressed by plaintiff in son Parish, 22 La. Ann. 410; Banger's error. Appeal, 109 Pa. 94.
Alaska Pacific Fisheries v. Alaska, 149 Mr. J. C. Murphy, Attorney General C. C. A. 262, 236 Fed. 52. of Alaska, argued the cause and filed a brief for defendant in error:
Mr. Justice Holmes delivered the opinThe legislature may itself select the ion of the court: lines of business upon which it may im
This is an action to recover the amount pose a tax, and it is beyond the province of taxes levied under statutes of Alaska, of the judiciary to control the acts of which the plaintiff alleges to be contrary the legislature in that respect. It is to the Act of Congress of August 24, 1912, wholly immaterial what may have been chap. 387, § 3, 37 Stat. at L. 512, Comp. the purpose or motive which animated Stat. § 3530, 1 Fed. Stat. Anno. 2d ed. the legislature in imposing the tax in p. 230, creating a legislative assembly in question. The remedy, if any, lies with the territory of Alaska, and to the Conthe people who elect the legislature. stitution of the United States. Judgment
Austin v. Boston, 7 Wall. 694, 19 L. was given for the defendant upon ed. 224; Spencer v. Merchant, 125 U. S. murrer to the complaint, the parties agree355, 31 L. ed. 767, 8 Sup. Ct. Rep. 921; ing that the foregoing grounds of recovery Quong Wing v. Kirkendall, 223 U. S. were the only matters in dispute. The 62, 56 L. ed. 350, 32 Sup. Ct. Rep. 192. statutes attacked, viz., May 1, 1913, April
When Congress, under the Organic 29, 1915, and May 3, 1917, levy license Act, created the territorial legislature, taxes of $2 a barrel, and $2 a ton, reand authorized it to impose other and spectively, upon persons manufacturing additional taxes, it undoubtedly realized fish oil, fertilizer, and fish meal in whole that the territory would be unable to or in part from herring. The act of Concarry on its business with the limited gress, after giving effect to the Constituamount of revenue provided for under tion and laws of the United States in the former congressional acts, and gave it territory, provides that the authority express authority to increase the amount therein granted to the legislature “to of taxes already imposed.
alter, amend, modify, and repeal laws in
force in Alaska shall not extend to the ed. 205, 8 Sup. Ct. Rep. 273; Louisville
of the & N. R. Co. v. Mottley, 219 U. S. 467, United States applicable to Alaska, or to 482, 55 L. ed. 297, 303, 34 L.R.A. (N.S.) the laws of the United States providing 671, 31 Sup. Ct. Rep. 265. We need not for taxes on business and trade
consider whether abuses of the power Provided further, That this provision shall might go to  such a point as to not operate to prevent the legislature from transcend it, for we have not such a case imposing other and additional taxes or before us. The acts must be judged licenses." Some reliance is placed also by their contents, not by the allegations upon § 9, that all taxes shall be uniform as to their purpose in the complaint. upon the same class of subjects, etc., and We know of no objection to exacting a that no tax shall be levied for territorial discouraging rate as the alternative to  purposes in excess of 1 per centum giving up a business, when the legislaupon the assessed valuation of property ture has the full power of taxation. The therein in any one year.
case is different from those where the The complainant alleges that the tax power to tax is limited to inspection fees will prohibit and confiscate the plaintiff's and the like, as in Postal Teleg.-Cable business, which is that of manufacturing Co. v. Taylor, 192 U. S. 64, 72, 48 L. ed. fish oil, fertilizer, fish meal, and by- 312, 346, 24 Sup. Ct. Rep. 208. products from herring, either in whole or But it is said that, however it may be in part; that the tax unreasonably dis- with regard to the Constitution, taken by criminates against the plaintiff, as it levies itself, the statutes brought into question no tax upon the producers of fish oil, etc., are contrary to the act of Congress from from other fish, and is otherwise ex- which the local legislature derives its tortionate; and that it contravenes the power. In the first place, they are said act of Congress in lack of uniformity and to be an attempt to modify or repeal the in exceeding 1 per centum of the actual fish laws of the United States. The Act value of the plaintiff's property. The of Congress of June 6, 1900, chap. 786, prophecies of destruction and the allega- $ 29, 31 Stat. at L. 321, 331, Alaska Comp. tions of discrimination as compared with Laws, § 2569, imposes a tax on fish-oil similar manufactures from salmon are works of 10 cents per barrel and on ferdenied by the attorney general for Alaska, tilizer works of 20 cents per ton, rethe latter denial being based upon a com- peated in slightly different words by the parison of the statutes, which, of course, Act of June 26, 1906, chap. 3547, 34 Stat. is
open. We are content, however, to at L. 478, Comp. Stat. § 3628, 1 Fed. Stat. assume for the purposes of decision that, Anno. 2d ed. p. 353, Alaska Comp. Laws, not to speak of other licenses, the ques- $ 259. But these are not fish laws as we tioned acts do bear more heavily upon understand the phrase. It is argued, howthe use of herring for oil and fertilizer ever, that at least they import a license than they do upon the use of other fish." (License Tax Cases, 5 Wall. 462, 470, But there is nothing in the Constitution|18 L. ed. 497, 500), and that a tax alleged to hinder that. If Alaska deems it for to be prohibitory flies in their teeth. It its welfare to discourage the destruction would be going far to say that a tax on of herring for manure, and to preserve fish-oil works in general terms imported them for food for man or for salmon, and a license to a specific kind of works to that end imposes a greater tax upon deemed undesirable by the local powers, that part of the plaintiff's industry than and when we take into account the express upon similar use of other fish or of the and unlimited authority to impose adoffal of salmon, it hardly can be said to ditional taxes and licenses we are satisfied be contravening a Constitution that has that the objection should not prevail. We known protective tariffs for a hundred confine our decision to the statutes before years. Rast v. Van Deman & L. Co. 240 us, repeating in this connection that they U. S. 342, 357, 60 L. ed. 679, 687, L.R.A. must be judged by their contents, not by 1917A, 421, 36 Sup. Ct. Rep. 370, Ann. the characterization of them in the comCas. 1917B, 455. Even if the tax should plaint. destroy a business, it would not be made The requirement of uniformity in § 9 invalid or require compensation upon that is disposed of by what we have said of ground alone.. Those who enter upon a the classification when considered with business take that risk. McCray v. Unit- reference to the Constitution. The legised States, 195 U. S. 27, 49 L. ed. 78, 24 lature was  warranted in treating Sup. Ct. Rep. 769, 1 Ann. Cas. 561. See the making of oil and fertilizer from Quong Wing v. Kirkendall, 223 U, S. herring as a different class of subjects 59, 56 L. ed. 350, 32 Sup. Ct. Rep. 192; from the making of the same from Mugler v. Kansas, 123 Ū. S. 623, 31 L. salmon offal. The provisions against
taxing in excess of 1 per centum of OʻStates Circuit Court of Appeals for
N WRIT of Certiorari to the United the assessed valuation of property do not apply to a license tax like this. the Eighth Circuit to review a decree This is not a property tax. Alaska which modified, and affirmed as mu lified, Pacific Fisheries v. Alaska, 149 C. C. a decree of the District Court for the A. 262, 236 Fed. 52, 61. The objection Western District of Missouri in favor that the plaintiff in error is doubly taxed. of plaintiff in a trademark infringement first by the United States and then suit. Afirmed. by the territory, is answered by the ex
case below, 168 C. C. A. press authority to levy additional taxes. 221, 257 Fed. 9. to which we have referred heretofore. The facts are stated in the opinion. Without going into more detail, we are
Mr. Andrew B. Remick argued the of opinion that the tax must be sustained.
cause and filed a brief for petitioner. Judgment affirmed.
Mr. Xenophon P. Wilfley argued the cause and filed a brief for respondents.
Mr. Justice Holmes delivered the opinSTARK BROTHERS NURSERIES & ion of the court: ORCHARDS COMPANY, Petitioner, This is a suit brought September 11,
1916, in the district court of the United WILLIAM P. STARK and William H. States by the petitioner, a Missouri cor
Stark, Trustees, Doing Business under the
an infringement of a trademark, “Stark
Trees," registered under the Act of Con(See S. C. Reporter's ed. 50-52.)
gress of February 20, 1905, chap. 592,
33 Stat. at L. 724, Comp. Stat. § 9185, Trademark registration infringe 9 Fed. Stat. Anno. 2d ed. p. 747, and
accounting damages amendments. The district court found limitation to date of notice.
infringement and unfair competition, Both the account of profits and the granted an injunction, and made a deeree damages in a suit for the infringement of for an account of profits from March 11, a registered trademark, brought in a l'ederal di-triet court without diversity of 1914, when the infringement began, limitcitizenship, are limited to the date when ing the damages, however, to those sufnotice was given of the registered mark, fered after August 26, 1916, that being by the Trademark Act of February 20, the date when the plaintiff gave the le1905, $ 28, which makes it the duty of the fendant notice of the registration of the registrant to give notice to the public by mark. The circuit court of appeals conattaching certain specified words or abbre curred with the district court as to the viations to the trademark, or to the recep; facts, but limited the account as well as tacle wherein the article is inclosed, and provides that in any suit for infringement the damages to the date when notice was by a party failing so to give notice of regi:- given of the registered mark, a few days tration no damages shall be recovered ex before the bringing of this suit. 248 Fed. cept on proof that the defendant was duly 151, 168 C. C. A. 221, 257 Fed. 9. This notified of infringement and continued the limitation is the only question here. same after such notice," notwithstanding an By § 28 of the Trademark Act it is earlier notice calling on the defendant to made the duty of the registrant to give discontinue the unfair competition and infringement on our rights,” and the wilful notice to the public by attaching cerinin character of defendants' wrongdoing.
specified words or abbreviations to the [For other cases, see Trademark, 11.; AC- trademark, or to the receptacle wherein
counting; Damages, VI. t, in Digest Sup. the article is inclosed; "and in any suit Ct. 1908.]
for infringement by a party failing so (No. 171.)
to give notice of registration no damages
shall be recovered, except on proof that Argued January 21, 1921. Decided January
the defendant was duly notified of in31, 1921.
fringement, and continued the same after
such notice.” 33 Stat. at L. 730, chap. Note.-As to infringement of trade 592, ('omp. Stat. $ 9514, 9 Fed. Stat. mark, generally—see notes to Lawrence Anno. 2d ed. p. 789. The infringement Mfg. Co. v. Tennessee Mfg. Co. 34 L. that is sued for is infringement of a reg. ed. U. S. 997; Coats v. Merrick Thread istered trademark, not infringement  Co. L. ed. U. S. and Dr. S. A. of a trademark. That is the plain meanRichmond Nerrine Co. v. Richmond, 40 ing of the above words and the necessary L. ed. C. S. 155.
scope of this suit, since that is the scope
HOGAN v. O'NEILL,
of the jurisdiction of the district court., of a specified county court of Massachusetts A. Leschen & Sons Rope Co. v. Broderick in the caption, and charging that, on a & B. Rope Co. 201 U. S. 166, 172, 50 L. specified date, the accused conspired toed. 710, 712, 26 Sup. Ct. Rep. 425. It gether to steal the property, goods, and seems very plain that the plaintiff had a must be deemed to charge the commission
chattels of a specified banking corporation, cause of action outside the statute, but of a crime within the state, in view of the that would have to be asserted elsewhere, provision of Mass. Rev. Laws, chap. 218, as the suit was between citizens of the $ 20, that the time and place of the comsame state. The statute alone gave the mission of a crime need not be alleged 'unright to come into this court of the United less it is an essential element of the crime; States. Coming in to assert its statutory that the name of the county and court in rights, we will assume in the plaintiff's be considered as
the caption shall, unless otherwise stated. favor that it could recover for unfair act was committed within the territorial
an allegation that the competition that was inseparable from jurisdiction of the court, and that all althe statutory wrong, but it could not reach legations of the indictment shall, unless back and recover for earlier injuries to otherwise stated, be considered to refer to rights derived from a different source.
the same time and place.
see Indictment, 11. a, The plaintiff argues that a notice of (For other cases,
Digest Sup. Ct. 1908. ] March 11, 1914, calling on the defendants
judicial notice “to discontinue the unfair competition and
2. Federal courts on habeas corpus to infringement on our rights,” coupled with review interstate extradition proceedings the wilful character of the defendants' will take notice of the laws of the demandwrongdoing, ought to lead to a differenting state. result, and the district judge seems to [For other cases, see Evidence, I. b, in Digest
Sup. Ct. 1908.) have had a similar notion. But that is
taking notice of law of to forget the origin and necessary livoit Extradition of the jurisdiction in this case.
demanding state. Decree aflirmed.
3. The governor of the surrendering state in interstate extradition proceedings may take notice of the laws of the demanding state.
(For other cases, see Extradition, IV, b, in
Digest Sup. Ct. 1908.]
a pleading is not open to inquiry on habeas (See S. C. Reporter's ed. 52-56.) corpus to review the issuance of a warrant
of arrest in interstate extradition proceedIndictment suíficiency
(For other cases, Habeas Corpus, II. b,
tion proceedings-see notes to State v. On right of court of asylum state, in Jackson, 1 L.R.A. 373; Ex parte Davis, interstate extradition proceedings, to 12 L.R.A.(N.S.) 225; Com. ex rel. Flower examine sufficiency of indietment-see v. Superintendent of County Prison, 21 note to Re Waterman, 11 L.R.A.(N.S.) L.R.A.(N.S.) 939; Wisener v. Burrell, 424.
34 L.R.A.(N.S.) 755; and Oteiza y Cortes
On questions reviewable by habeas On judicial notice in Federal courts of corpus-see notes to State v. Jackson, 1 state laws, and of laws previously pre- L.R.A. 373; Bion's Appeal, 11 L.R.A. vailing in acquired countries-see note to 694; United States v. Hamilton, 1 L. ed. M’Niel v. IIolbrook, 9 L. ed. U. S. 1909. U. S. 490; Re Carll, 27 L. ed. U. S. 238;
On practice and procedure in extradi- Oteiza y Cortes v. Jacobus, 34 L. ed. U.
On habeas corpus in the Federal courts 934; Bassing v. Cady, 52 L. ed. U. S. -see notes to Re Reinitz, 4 L.R.A. 236; 510; State v. Hall, 28 L.R.A. 289; and State ex rel. Cochran v. Winters, 10 | Ex parte Williains, 51 L.R.A.(N.S.) 668.