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tioner,

V.

of error were allowed, both of which | AMERICAN STEEL FOUNDRIES, Petiwere dismissed in this court. The previous decisions of this court were reviewed by Chief Justice Fuller, speak- ROBERT F. WHITEHEAD,1 Commissioner ing for the court, and, in concluding the opinion, he said:

"In the light of the various details of the Act of February 20, 1905, and of the specific provisions of 9, we were of opinion [Gaines v. Knecht, 212 U. S. 561, 53 L. ed. 652, 29 Sup. Ct. Rep. 688] that proceedings under the act were governed by the same rules of practice and procedure as in the instance of patents, and the writ of error was accordingly dismissed. The ame result must follow in the present case.

of Patents.

(See S. C. Reporter's ed. 40, 41.)

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A decision of the court of appeals of the District of Columbia on an appeal from a decision of the Commissioner of Patents, which affirms the latter's decision to refuse an application for the registration of a trademark, and directs the clerk to certify the decision of the court to the Commissioner, as required by law, is not final for the purpose of certiorari from the Federal Supreme Court.

[For other cases, see Certiorari, III. in Digest Sup. Ct. 1918 Supp.]

"Under 4914 of the Revised Statutes no opinion or decision of the court of appeals on appeal from the Commissioner precludes 'any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question,' and by Argued January 12 and 13, 1921. Decided

§ 4915 a remedy by bill in equity is given where a patent is refused, and we regard these provisions as applicable

[No. 131.]

April 11, 1921.

N WRIT of Certiorari to the Court

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of February 20, 1905."

We are of opinion that the principle there announced controls this case. No provision is made which permits this statutory proceeding to be carried beyond the decision of the court of appeals of the District of Columbia, the decision of which court is directed to be certified to the Commissioner of Patents. It is in no sense a final [40] judgment, reviewable here upon writ of certiorari or appeal.

It is true that in Estate of P. D. Beckwith v. Commissioner of Patents, 252 U. S. 538, 64 L. ed. 705, 40 Sup. Ct. Rep. 414, this court allowed a writ of certiorari from a decision of the court of appeals of the District of Columbia, affirming a decision of the Commissioner of Patents, in an application to register a trademark. No question of the jurisdiction of the court was considered in that case, and an inadvertent allowance of the writ of certiorari does not establish the jurisdiction of the court. J. Homer Fritch v. United States, 248 U. S. 458, 463, 63 L. ed. 359, 361, 39 Sup. Ct. Rep. 158.

It follows that the appeal must be dismissed, and the petition for a writ of certiorari denied.

So ordered.

lumbia to review a decree which affirmed a decision of the Commissioner of Patents, refusing an application for the registration of a trademark. Dismissed for want of jurisdiction.

See same case below, 49 App. D. C. 16, 258 Fed. 160.

The facts are stated in the opinion. Mr. George L. Wilkinson argued the cause and filed a brief for petitioner.

Mr. Nathan Heard argued the cause and filed a brief for the Simplex Electric Heating Company, by special leave.

Solicitor General Frierson and Assist

ant Attorney General Davis filed a brief for the Commissioner of Patents.

Note.-On certiorari in United States courts-see note to Clark v. Hackett, 17 L. ed. U. S. 69.

As to what judgments or decrees are final for purposes of review-see notes to Gibbons v. Ogden, 5 L. ed. U. S. 302; Schlosser v. Hemphill, 49 L. ed. U. S. 1001, and Detroit & M. R. Co. v. Michigan R. Commission, 60 L. ed. U. S. 802.

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In this 'case a writ of certiorari was

Mr. Justice Day delivered the opinion, Harrison Anti-narcotic Drug Act of Decemof the court: ber 17, 1914, and Minn. Laws 1915, chap. 260, regulating traffic in habit-forming narute, although the prohibitory measures of cotic drugs, as invalidates the state statthe Federal statute do not apply to the disposition and dispensation of drugs by physicians registered under the act, in the reg ular course of professional practice, provided records are kept for official inspection, while, under the state law, physicians can only furnish prescriptions to addicts, and may not dispense the drugs to such persons at pleasure from stocks of their [For other cases, see States, IV. b, in Digest Sup. Ct. 1908.]

granted by this court on October 13, 1919 [250 U. S. 655, 63 L. ed. 1192, 40 Sup. Ct. Rep. 10]. The case involves an application for the registration of a trademark, which was refused by the Examiner in the Patent Office, which decision was affirmed by the Commissioner of Patents, and his decision was affirmed by the court of appeals of the District of Columbia. 49 App. D. C. 16, 258 Fed. 160. This case is ruled by Nos. 139 and 113, just decided [256 U. S. 35, ante, 816, 41 Sup. Ct. Rep. 405]. As the writ of certiorari in this case, for the reasons stated in the opinion in No. Argued March 17, 1921. Decided April 11, 139, was improvidently granted, it follows that the cause must be dismissed for want of jurisdiction, and it is so ordered.

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due process of

privileges and regulating traffic in

immunities
habit-forming drugs.

1. A state, in the exercise of its police
power, may, consistently with U. S. Const.,
14th Amend., regulate the administration,
sale, prescription, and use of dangerous and
habit-forming narcotic drugs, and in so do-
ing may make it unlawful for a physician
to furnish such drugs to habitual users out
of stocks kept on hand by himself.
[For other
cases, see Constitutional Law,
IV. a. 5: IV. b, 7; IV. c, 3, in Digest Sup.

Ct. 1908.]

States

conflicting state and Federal regulation regulating traffic in habit-forming drugs.

2. There is no such conflict between the Note. As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436, and Wilson v. North Carolina, 42 L. ed. U. S. 865.

For a discussion of police power, generally-see notes to State v. Marshall, 1 L.R.A. 51; Re Gannon, 5 L.R.A. 359; State v. Schlemmer, 10 L.R.A. 135; Ulman v. Baltimore, 11 L.R.A. 224; Elec

own.

[No. 224.]

1921.

ERROR to the Supreme Court of the State of Minnesota to review a judgment which affirmed an order of the District Court of Hennepin County, in that state, discharging a writ of habeas corpus. Affirmed.

See same case below, 144 Minn. 206, 174 N. W. 823.

The facts are stated in the opinion.

Mr. Thomas E. Latimer argued the cause and filed a brief for plaintiff in

error:

It is the established doctrine that in every case where there are acts of Congress, passed pursuant to the provision of the Federal Constitution, they are the supreme law; and the state laws and the authority exercised thereunder, although touching matters within the reserved powers of the states, must yield thereto.

V.

Wilson v. Black-Bird Creek Marsh Co. 2 Pet. 245, 251, 252, 7 L. ed. 412, 414; Houston v. Moore, 5 Wheat. 1, 49, 5 L. ed. 19, 30; Henderson v. New York (Henderson v. Wickham) 92 U. S. 272, 23 L. ed. 549; M'Culloch Maryland, 4 Wheat. 316, 405, 406, 436, 4 L. ed. 579, 601, 608; Ex parte Yarbrough, 110 U.. tric Improv. Co. v. San Francisco, 13 L.R.A. 131, and Barbier v. Connolly, 28 L. ed. U. S. 923.

As to constitutional equality of privileges, immunities, and protection, generally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579.

As to furnishing or prescribing by physician of habit-forming drugs-see note to Com. v. Noble, L.R.A.1918E, 669.

As to right of physician to sell drugs without a prescription-see note to Niswonger v. State, 46 L.R.A. (N.S.) 1.

S. 658, 28 L. ed. 276, 4 Sup. Ct. Rep. 152; Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900; Reid v. Colorado, 187 U. S. 146, 47 L. ed. 133, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506; Northern Securities Co. v. United States, 193 U. S. 197, 347, 48 L. ed. 679, 704, 24 Sup. Ct. Rep. 436; Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 802; Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L. ed. 23, 73; Prigg v. Pennsylvania, 16 Pet. 617, 10 L. ed. 1089; Brown v. Walker, 161 Ú. S. 591, 606, 40 L. ed. 819, 824, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644; Pennsylvania v. Wheeling & B. Bridge Co. 13 How. 516, 566, 14 L. ed. 248, 269; Illinois C. R. Co. v. Doherty, 153 Ky. 363, 47 L.R.A. (N.S.) 31, 155 S. W. 1119; McPherson v. Blacker, 92 Mich. 377, 16 L.R.A. 475, 31 Am. St. Rep. 587, 52 N. W. 469; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Sinnot v. Davenport, 22 How. 227, 16 L. ed. 243; Weaver v. Fegely, 29 Pa. 27, 70 Am. Dec. 151.

The Federal Congress, by the passage of the Harrison Narcotic Drug Act, which has been upheld as constitutional, has assumed, among other matters, the authority for the regulation of the dispensing and prescription of drugs to addicts and others by physicians.

United States v. Doremus, 249 U. S. 86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214; Webb v. United States, 249 U. S. 96, 63 L. ed. 497, 39 Sup. Ct. Rep. 217; Hughes v. United States, 165 C. C. A. 213, 253| Fed. 543; United States v. Joseph Fleming & Son Co. 251 Fed. 932; United States v. Jin Fuey Moy, 253 Fed. 213; Foreman v. United States, 166 C. C. A. 655, 255 Fed. 621; Fyke v. United States, 165 C. C. A. 513, 254 Fed. 225; Saunders v. United States, 171 C. C. A. 252, 260 Fed. 387; Trader v. United States, 260 Fed. 924; Thompson v. United States, 169 C. C. A. 264, 258 Fed. 196; United States v. Rosenberg, 251 Fed. 963; United States v. Friedman, 224 Fed. 276, 171 C. C. A. 254, 260 Fed. 389; Melanson v. United States, 168 C. C. A. 129, 256 Fed. 787; Reeves v. United States, 263 Fed. 691.

The construction placed upon any state statute by the highest court of that state is deemed to be conclusive upon the Federal courts.

Forsyth v. Hammond, 166 U. S. 506, 519, 41 L. ed. 1095, 1098, 17 Sup. Ct. Rep. 665; Louisiana v. Pillsbury, 105 U.

S. 278, 294, 26 L. ed. 1090, 1095; Christy v. Pridgeon, 4 Wall. 196, 18 L. ed. 322; Shelby v. Guy, 11 Wheat. 361, 6 L. ed. 495; Gatewood v. North Carolina, 203 U. S. 531, 51 L. ed. 305, 27 Sup. Ct. Rep. 167.

The construction placed upon § 2 of chapter 260 of the General Laws of Minnesota for 1915 by the highest court of the state is such as to place that provision of the state law in conflict with and repugnant to the provisions of the act of Congress known as the Harrison Narcotic Law, approved December 17th, 1914.

United States v. Friedman, 224 Fed. 276; United States v. Joseph Fleming & Son Co. 251 Fed. 932; United States v. Reynolds, 244 Fed. 991.

The prohibitions of the 14th Amendment to the Constitution of the United States apply to legislative and judicial acts of a state which are hostile in their purpose to the authority of the United States government, or which impair the rights of citizens under the Constitution of the United States.

Taylor v. Thomas, 22 Wall. 479, 22 L. ed. 789; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 234, 41 L. ed. 983, 17 Sup. Ct. Rep. 581; Hodgson v. Vermont, 168 U. S. 272, 42 L. ed. 464, 18 Sup. Ct. Rep. 80; Blake v. McClung, 172 U. S. 260, 43 L. ed. 440, 19 Sup. Ct. Rep. 165; Taylor v. Beckham, 178 U. S. 610, 44 L. ed. 1212, 20 Sup. Ct. Rep. 904; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. 184; State v. Sheridan, 25 Wyo. 347, 1 A.L.R. 955, 170 Pac. 3; American Waterworks & Guarantee Co. v. Home Water Co. 115 Fed. 178; State v. Peel Splint Coal Co. 36 W. Va. 856, 17 L.R.A. 385, 15 S. E. 1000; Indiana Natural & Illuminating Gas Co. v. State, 158 Ind. 522, 57 L.R.A. 763, 63 N. E. 220; Chenoweth v. State Medical Examiners, 57 Colo. 74, 51 L.R.A. (N.S.) 958, 141 Pac. 134; Louisville & N. R. Co. v. State, 16 Ala. App. 199, 76 So. 507.

A physician, in order to bring himself under ¶ A of § 2 of the Harrison Narcotic Act, which establishes an exception to the general provisions of said act, must, first, register under the act; second, dispense drugs to none but patients un

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Reid v. Colorado, 187 U. S. 148, 47 L. ed. 114, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506.

der medical or professional treatment; | could not be reconciled or consistently and third, prepare and keep a record of stand together. drugs dispensed as therein provided, and preserve the same for a period of two years. If these provisions are complied with, the physician has shown his desire to comply with the provisions of the law, and his good faith in the dispensing of drugs.

In practically every jurisdiction, the Federal courts have stressed and made the deciding factor in cases against physicians the question of the good faith of the physician. Did he dispense the drug to a bona fide patient, in the course of professional treatment?

United States v. Joseph Fleming & Son Co. 251 Fed. 932; Sims v. United States, 268 Fed. 234; United States v. Charter, 227 Fed. 331; Jin Fuey Moy v. United States, 254 U. S. 189, ante, 214, 41 Sup. Ct. Rep. 98, 225 Fed. 1003, 253 Fed. 213; Workin v. United States, 171 C. C. A. 173, 260 Fed. 137; Hughes v. United States, 165 C. C. A. 213, 253 Fed. 543; Thurston v. United States, 154 C. C. A. 215, 241 Fed. 335; Blount v. United States, 166 C. C. A. 502, 255 Fed. 334.

Mr. James E. Markham argued the cause, and, with Mr. Clifford L. Hilton, Attorney General of Minnesota, filed a brief for defendant in error:

When the local police regulation has real relation to the suitable protection of the people of the state, and is reasonable in its requirements, it is not invalid because it may incidentally affect congressional legislation.

Plumley v. Massachusetts, 155 U. S. 461, 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154.

Where the subject is of wide importance to the community, the consequences of fraudulent practices are generally injurious, and the suppression of such fraud is a matter of public concern, it is within the protective power of the state to intervene.

Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345, 43 L. ed. 191, 18 Sup. Ct. Rep. 862.

Where an act of Congress relating to a subject on which the state may act also limits its prohibitions, it leaves the subject open to state regulation as to prohibitions which are unenumerated. Even has the exclusive power to legislate, as to a subject upon which the Congress when it does act, the intent to supersede the exercise by the state of its police power as to matters not covered by the congressional legislation is not to be inferred. Such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state.

Savage v. Jones, 225 U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Rep. 715.

The right of the state, in the exercise of its police power, to adopt laws restricting or forbidding the sale of harmful substances, such as intoxicating liquor and habit-forming narcotic drugs, has been so repeatedly affirmed by the decisions of this court that reference thereto seems unnecessary. The Federal act containing regulations and restric-mount authority, providing a general systions upon the sale of narcotic drugs was sustained only because it was declared to be a tax measure, not unreasonably interfering with the reserved police power of the states.

United States v. Doremus, 249 U. S. 86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214. It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said-and the principle has been often reaffirmed that, in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts

Where legislation is adopted by para

tem for the regulation of the business of selling an article, the unrestricted sale of which may injuriously affect the public morals, a standard of regulation is thus established below which standard prescribed the subordinate authority may not fall; but it does not deprive the subordinate authority of the right to provide for such supplemental and additional regulations as may be required by local conditions.

Evans v. Redwood Falls, 103 Minn. 314, 115 N. W. 200.

Mr. Justice Day delivered the opinion of the court:

The relator was convicted of a violation of a statute of the state of Minnesota providing against the evils resulting from traffic in certain habit

forming narcotic drugs, and regulating of habeas corpus in the district court of

Hennepin county, Minnesota, which
writ was discharged, and the order was
affirmed on appeal to the supreme court
of Minnesota. 144 Minn. 206, 174 N.
W. $23.
The case
was then brought
here to review this judgment of the
state court upon writ of error.

The grounds of attack upon the stat ute are based upon [45] an alleged deprivation of Federal rights, it being contended: First: that the statute exceeds the authority of the state in the exertion of its police power, in that it undertakes to regulate a lawful business in the manner prescribed in the statute, in violation of the 14th Amendment. See

the administration, sale, and possession thereof. Minn. Laws 1915, chap. 260. The Minnesota statute, in § 1, forbids the sale of morphine and certain other narcotic drugs, with the provision that licensed pharmacists may fill orders for the same to a consumer, pursuant to the written prescription of a physician, which must be dated on the day on which it is signed, and bear the signature and address of the physician, and the name of the person for whose use it is intended. It must be serially numbered, dated, and filed in the prescription file of the compounder, and retained there for two years, open for inspection by the authorities. Pre- ond: That the statute conflicts with the scriptions may be filled but once, and no copy may be given except to an officer of the law, and the drug must be delivered in a container labeled with the serial number of [44] the prescription, with the date when filled and the name of the person for whose use the medicine is intended, the name of the physician, and the name and address of the dispenser. The administration, sale, or disposal of the drugs by a legally licensed physician is permitted when made to a patient on whom he is in professional attendance. The physician must subscribe the name and address of the patient, the date of the sale or disposal, and the amount of the drug transferred, which must be delivered in a container labeled as required by the statute.

Section 2 provides:

"It shall be unlawful for any physician or dentist to furnish to or prescribe for the use of any habitual user of the same any of the substances enumerated in § 1 of this act; provided that the provisions of this section shall not be construed to prevent any legally licensed physician from prescribing in good faith for the use of any patient under his care for the treatment of a drug habit such substances as he may deem necessary for such treatment; provided that such prescriptions are given in good faith for the treatment of such habit." The trial court construed this section of the statute as making it unlawful for a physician to furnish the drugs to habitual users out of stocks kept on hand by himself. And such was the offense of which the relator was convicted.

terms and provisions of the Federal Harrison Anti-narcotic Drug Act, December 17, 1914, 38 Stat. at L. 785, chap. 1, Comp. Stat. § 6287g, 4 Fed. Stat. Anno. 2d ed. p. 177, and is therefore beyond the power of the state to enact.

There can be no question of the authority of the state, in the exercise of its police power, to regulate the administration, sale, prescription, and use of dangerous and habit-forming drugs such as are named in the statute. The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.

As to the alleged inconsistency between the state statute and the Harrison Anti-narcotic Drug Act, the state court held that there was no substantial conflict between the two enactments. The validity of the Harrison Act was sustained by this court in United States v. Doremus, 249 U. S. 86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214, as a valid exercise of the authority of Congress under the power conferred by the Constitution to levy excise taxes. The provisions of the statute regulating the sale, dispensing, or prescribing of drugs were held to bear a reasonable relation to the collection of the taxes provided for, and to be valid although the statute affected the conduct of a business which was subject to regulation by the police power of the state.

It may be granted that the state has no power to enact laws which will render nugatory a law of Congress enacted This construction of the section, and to collect revenue under authority of the conviction and sentence, were sus- constitutional enactments. See Savage tained by the supreme court of Minne- v. Jones, 225 U. S. 501, 56 L. ed. 1182, sota. 143 Minn. 403, 173 N. W. 801. 32 Sup. Ct. Rep. 715; McDermott v. Thereupon the relator sued out a writ Wisconsin, 228 U. S. 115, 57 L. ed. 754,

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