For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ground that the statute is inconsistent bothers in prior occupancy." For experience with the Fourteenth Amendment and with the act of Congress of February 25, 1885, c. 149, 23 Stat. 321 (Comp. St. 1916, §§ 49975002), entitled "An act to prevent unlawful Occupancy of the public lands."

shows that sheep do not require protection against encroachment by cattle, and that cattle rangers are not likely to encroach upon ranges previously occupied by sheep herders. The propriety of treating sheep differently than cattle has been generally recog nized.8 That the interest of the sheep owners of Idaho received due consideration is

[1, 2] First. It is urged that the statute denies rights guaranteed by the Fourteenth Amendment, namely: Privileges of citizens of the United States, in so far as it prohib-indicated by the fact that in 1902 they opits the use of the public lands by sheep own- posed the abolition by the government of the ers; and equal protection of the laws, in free ranges. that it gives to cattle owners a preference over sheep owners. These contentions are, in substance, the same as those made in respect to the "Two Mile Limit Law" in Bacon v. Walker, supra; and the answer made there is applicable here. The police power of the state extends over the federal public domain, at least when there is no legislation by Congress on the subject.5 We cannot say that the measure adopted by the state is unreasonable or arbitrary. It was found that conflicts between cattle rangers and sheep herders on the public domain could be reconciled only by segregation. In national for ests, where the use of land is regulated by the federal government, the plan of segregation is widely adopted. And it is not an arbitrary discrimination to give preference to cattle owners in prior occupancy without providing for a like preference to sheep own

The advisability of regulation by some system of leasing or licensing has been repeatedly recommended to Congress, and bills to that end have been introduced, but none has been enacted. Report of Department of Interior (1902) Vol. I, pp. 167-175; Congressional Record, Vol. 35 (1901-02) pp. 291, 1048; Report of Public Lands Commission, Senate Doc. (1905) 58th Congress, 3d Session, No. 189, pp. XX-XXIII, 5-61; Congressional Record, Vol. 40 (1905-06) pp. 54, 1164; Letter from the Acting Secretary of Interior, House Doc. No. 661 (March, 1906); Report of Department of Interior (1907) Vol. I, pp. 78-81; Congressional Record, Vol. 42 (1907-08) p. 14; Report of Department of Interior (1908) Vol. I, p. 15; Action of the American National Live Stock Association Relative to the Disposition of the Unappropriated Public Lands of the United States (1908); Report of Department of Interior (1911) Vol. I, p. 9; Congressional Record, Vol. 48 (1911-12) p. 69; Hearings before the House Committee on Public Lands on H. R. Bill 19857 (1912); Report of Department of Interior (1912) Vol. I, p. 5; Congressional Record, Vol. 50 1913) p. 2365; Vol. 51 (1913-14) pp. 939, 3814; Report of Department of Agriculture (1914) pp. 8-10; Hearing before a Subcommittee of the House Committee on Public Lands on H. R. 9582, February 12, 1914, pp. 7, 8; "Practical Application of the Kent Grazing Bill to Western & Southwestern Grazing Ranges," address by J. J. Thornber before the American National Live Stock Association, Denver, Colo., January 22, 1914; Report of Department of Agriculture (1915) p. 47; Congressional Record, Vol. 53 (1915-16) p. 21; Report of Department of Agriculture (1916) pp. 18, 19.

National Forest Manual (1913) pp. 13, 28; Hearing before House Committee on H. R. 9582 and H. R. 10539, on Grazing on Public Lands (1914) p. 73; Grazing in Forest Reserves, by F. Roth, Yearbook of Dept. of Agriculture (1901) pp. 333, 338, 343; Grazing of Live Stock on Forest Reserves, by Gifford Pinchot, Report National Live Stock Association (1902) pp. 274, 275.

[3] Second. It is also urged that the Idaho statute, being a criminal one, is so indefinite in its terms as to violate the guaranty by the Fourteenth Amendment of due process of law, since it fails to provide for the ascertainment of the boundaries of a "range" or for determining what length of time is necessary to constitute a prior occupation a "usual" one within the meaning of the act. Men familiar with range conditions and desirous of observing the law will have little difficulty in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other states.10 This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court. Nash v. United States, 229 U. S. 373, 377, 33 Sup. Ct. 780, 57 L. Ed. 1232; Miller v. Strahl, 239 U. S. 426, 434, 36 Sup. Ct. 147, 60 L. Ed. 364. Furthermore, any danger to sheep men which might otherwise arise from indefiniteness, is removed by section 6314 of Revised Codes, which provides that:

"In every crime or public offence there must exist a union, or joint operation, of act and intent, or criminal negligence."

*[4] Third. It is further contended that the Statute is in direct conflict with the Act of

In the prolonged discussion of the proposal to correct the abuses of "open range" by leasing government grazing lands, the propriety of safeguarding "rights" as determined by priority of occupancy and use has been generally insisted upon. See Conference of Governors (1908) p. 347; Report of Department of Interior (1902) p. 174; Report of Pub

lic Lands Commission, Senate Doc. (1905) 58th Congress, 3d Session, No. 189, pp. 14, 60 (par. 13); National Forest Manual June 4, 1913, pp. 53, 58.

Reports of the Department of Interior (1898) Vol. I, p. 87; (1899) Vol. I, pp. XX, 105-112; (1900) Vol. I, p. 390; (1901) Vol. I, p. 127. Utah (1853), Laws 1851-1869, chap. 60, p. 90; Washington, Laws 1907, p. 78; Arizona, Penal Code 1913, § 641. See statutes cited, infra, in note 14.

Hearings before House Committee on Public Lands on Leasing Grazing Lands (1902) 57th Congress, 1st Session, pp. 76-77.

10 Montana, Laws 1871-72, page 287, § 87, makes it a crime to drive stock from a "range" on which they "usually" run; North Dakota, Laws 1891 p. 123, deals with "customary range"; Arizona, Penal Code 1913, § 637, with "range"; Colorado, Courtright's Statutes, § 6375, with "usual range"; Texas, Penal Code Annotated 1916, art. 1356 (1866), with "accustomed range."

11 "An act to prevent unlawful occupancy of the public lands.

Congress of February 25, 1885.11 That stat-gal fencing of public lands, contains at the ute which was designed to prevent the ille- close of section 1 the following clause with which the Idaho statute is said to conflict: "And the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any state or any of the territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and hereby prohibited."

"Be it enacted by the Senate and House of Representatives of the United States of Amrica in Congress assembled, that all inclosures of any public lands in any state or territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within

or

the inclosure the person, party, association, corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry

An examination of the federal act in its entirety makes it clear that what the clause quoted from section 1 sought to prohibit was merely the assertion of an exclusive right to use or occupation by force or intimidation or by what would be equivalent in effect to an thereof at the proper land office under the general laws of the United States at the time any such in- inclosure. That this was the intent of Conclosure was or shall be made, are hereby declared gress is confirmed by the history of the act. to be unlawful, and the maintenance, erection, The reports of the Secretary of the Interior construction, or control of any such inclosure is

hereby forbidden and prohibited; and the asser- upon whose recommendation the act was intion of a right to the exclusive use and occupancy troduced, the reports of the committees of of any part of the public lands of the United Congress, and the debates thereon indicate States in any state or any of the territories of the that this alone was the evil sought to be remUnited States, without claim, color of title, or asserted right as above specified as to inclosure, is edied,12 and to such action only does its prolikewise declared unlawful, and hereby prohibited. hibition appear to have been applied in prac"Sec. 2. That it shall be the duty of the district tice.18 Although Idaho had, by statute, exattorney of the United States for the proper district, on affidavit filed with him by any citizen of the cluded sheep from portions of the public doUnited States that section one of this act is being main since 1875, no reference to the fact violated showing a description of the land inclosed has been found in the discussion which prewith reasonable certainty, not necessarily by metes ceded and followed the enactment of the fedand bounds nor by governmental sub-divisions of surveyed lands, but only so that the inclosure may eral law, nor does any reference seem to have be identified, and the persons guilty of the viola- been made to the legislation of other states tion as nearly as may be, and by description, if which likewise excluded sheep, under certain the name cannot on reasonable inquiry be ascertained, to institute a civil suit in the proper United circumstances, from parts of the public doStates District or Circuit Court, or territorial dis- main.14 And no case has been found in trict court, in the name of the United States, and against the parties named or described who shall be in charge of or controlling the inclosure complained of as defendants; and jurisdiction is also hereby conferred on any United States District or Circuit Court or territorial district court having jurisdiction over the locality where the land inclosed, or any part thereof, shall be situated, to hear and determine proceedings in equity by writ of injunction, to restrain violations of the provisions of this act; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the inclosure; and any suit brought under the provisions of this section shall have precedence for hearing and trial over other cases on the civil docket of the court, and shall be tried and determined at the earliest practicable day. In any case if the inclosure shall be found to be unlawful, the court shall make the proper order, judgment, or decree for the destruction of the inclosure, in a summary way, unless the inclosure shall be removed by the defendant within five days after the order of the court.

"Sec. 3. That no person, by force, threats, intimidation, or by any fencing or inclosing, or any other

guilty of a misdemeanor and fined in a sum not exceeding one thousand dollars or be imprisoned not exceeding one year, or both, for each offense. [As amended by Act March 10, 1908, c. 75 (35 Stat. 40).] "Sec. 5. That the President is hereby authorized to take such measures as shall be necessary to remove and destroy any unlawful inclosure of any of said lands, and to employ civil or military force as may be necessary for that purpose.

"Sec. 6. That where the alleged unlawful inclosure includes less than one hundred and sixty acres of land, no suit shall be brought under the provisions of this act without authority from the Secretary of the Interior.

"Sec. 7. That nothing herein shall affect any pending suits to work their discontinuance, but as to them hereafter they shall be prosecuted and determined under the provisions of this act.

"Approved, February 25th, 1885."

1 Reports of Department of Interior (1882) Vol. I, P. 13; (1883) Vol. I, pp. XXXII, 30, 210; (1884) Vol. I, pp. XVII, 17; (1885) Vol. I, p. 205; Letter of Secretary of Interior (1884) Senate Ex. Doc. (1883-84) No. 127; Report of House Committee, 48th

Senate Committee, 48th Congress, 2d Session (1885) No. 979; Congressional Records, Vol. 15 (1883-84) pp. 4768-4783; Vol. 16 (1884-85) p. 1457.

unlawful means, shall prevent or obstruct, or shall Congress, 1st Session (1884) No. 1325; Report of combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands: Provided, this section shall not be held to affect the right or title of persons, who have gone upon, improved or occupied said lands under the land laws of the United States, claiming title thereto, in good faith. "Sec. 4. That any person violating any of the provisions hereof, whether as owner, part owner, or agent, or who shall aid, abed, counsel, advise, or assist in any violation hereof, shall be deemed

13 United States v. Brandestein (D. C.) 32 Fed. 738, 741; Reports of Department of Interior (1885) Vol. I, p. 44; (1886) Vol. I, pp. 30-41; (1887) Vol. I, pp. 12, 13; (1888) Vol. I, p. XVI; (1901) Vol. I, p. 92; (1902) Vol. I, pp. 11, 172, 173, 306; (1903) Vol. I, pp. 18-19; (1904) Vol. I, pp. 20, 367; (1905) Vol. I, p. 20; (1908) Vol. I, p. 15; (1915) Vol. I, p. 226. Compiled Statutes, §§ 4997-5002, notes.

14 Statutes resembling the Idaho "Two Mile Limit Law" have been passed in a number of the Western states. Arizona, Act Feb. 12, 1875, Compiled Laws 1864-77, p. 561; Penal Code of Ariz.

which it was even urged that these state statutes were in conflict with this act of Congress.

trade-mark litigation, the court's opinion indicating that the reversal was on account of defendant's prior appropriation and unlimited as to time or territory, is conclusive against complainant's right to recover in another circuit against the same defendants for the alleged infringement.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Sixth Circuit.

The Idaho statute makes no attempt to grant a right to use public lands. McGinnis v. Friedman, 2 Idaho (Hasb.) 393, 17 Pac. 635. The state, acting in the exercise of its police power, merely excludes sheep from certain ranges under certain circumstances. Like the forcible entry and detainer act of Bill by W. A. Gaines & Co. against the Washington which was held in Denee v. An- Rock Spring Distilling Company and Silas keny (decided March 4, 1918) 246 U. S. 208, Rosenfield. A decree of the District Court, 38 Sup. Ct. 226, 62 L. Ed. not to conflict dismissing the bill (202 Fed. 989), was rewith the homestead laws, the Idaho statute versed by the Circuit Court of Appeals (226 was enacted primarily to prevent breaches Fed. 531, 141 C. C. A. 287), and defendants of the peace. The incidental protection | bring certiorari. Decree of Circuit Court of Appeals reversed, and that of the District Court affirmed.

which it thereby affords to cattle owners does not purport to secure to any of them, or to cattle owners collectively, "the exclusive use and occupancy of any part of the public lands." For every range from which sheep are excluded remains open not only to all cattle, but also to horses, of which there are many in Idaho.15 This exclusion of sheep owners under certain circumstances does not interefere with any rights of a citizen of the United States. Congress has not conferred upon citizens the right to graze stock upon the public lands. The government has merely suffered the lands to be so used. Buford v. Houtz, supra. It is because the citizen possesses no such right, that it was held by this court that the Secretary of Agriculture might, in the exercise of his general power to regulate forest reserves, exclude sheep and cattle therefrom. United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563; Light v. United States, 220 U. S. 523, 31 Sup. Ct. 485, 55 L. Ed. 570.

All the objections urged against the validity of the statute are unsound. The judgment of the Supreme Court of Idaho is Affirmed.

Mr. Justice VAN DEVANTER and Mr. Justice McREYNOLDS dissent.

(246 U. S. 312)

This is a bill in equity brought by the Gaines Company against the Rock Spring Company to restrain the latter from using, the trade-mark of the former. The trademark is registered and is employed by the Gaines Company to designate a brand of straight rye or straight bourbon whisky manufactured by that company.

The following are the facts of the bil, stated narratively:

The Gaines Company is the owner of a whisky distillery in Woodford county, Kentucky, known and named as the Old Crow Distillery. It is the only one in the state that is or ever has been designated by the name of "Crow" or "Old Crow."

Its product has been at all of the times; mentioned in the bill straight rye and straight bourbon whisky and to it there has at all times been applied the trade-mark consisting of the words "Old Crow" by being imprinted or branded on the wooden box containing the whisky and imprinted upon labels affixed to bottles containing the whisky. The trademark is now and for many years past has been used by the company and its predecessors in commerce among the states.

On February 26, 1909, it filed in the Patent Office, in pursuance of the Act of February 20, 1905 (33 Stat. 724 [Comp. St. 1916, §

ROCK SPRING DISTILLING CO. et al. v. 9485 et seq.]), in due form and under the

W. A. GAINES & CO.

(Argued Jan. 31 and Feb. 1, 1918.

March 18, 1918.)
No. 58.

1. TRADE-MARKS AND TRADE-NAMES APPLICATION OF TRADE-MARK.

A trade-mark on whisky includes both straight and blended whisky and entitles an owner to use it on both brands.

2. JUDGMENT 720-CONCLUSIVENESS-IsSUES-MATTERS CONCLUDED.

A decision of the Circuit Court of Appeals, reversing a decree in favor of complainant in

The Gaines Company, availing itself of certain acts of Congress, began and has ever since maintained the bottling of the "Old Crow" in bond and it was then and has ever since remained the only "Old Crow" whisky bottled in bond and has an extensive sale

1913, 639 Colorado, Courtright's Colorado Stat- throughout the United States and in foreign utes, § 6377 (1877); Nevada. Revised Laws 1912, $countries; and when so bottled in bond it 2317 (1901), § 2319 (1907); California, Statutes 1869-70, is known as and called "Old Crow Bottled 15 Compare U. S. Census (1910) Vol. VI, p. 390; in Bond," is so marked, and commands a Report, Department of Agriculture (1914) p. 148. high price.

p. 304.

For other cases see same toplo and KEY-NUMBER in all Key-Numbered Digests and Indexes

313

315

The Rock Spring Company is a corporation, I petition to be permitted to intervene, which has a distillery in the county of Daviess, was denied. (C. C.) 179 Fed. 544. Kentucky, and is the owner of a distillery situated therein known as Distillery No. 18, operated by Silas Rosenfield, one of the defendants.

The Rock Spring Company, in fraud of the Gaines Company's rights and in infringement of its trade-mark, made or caused to be made and sold or caused to be sold in Kentucky a certain spurious straight bourbon whisky, not the product of the Gaines Company, and branded the same with the words "Celebrated Old Crow Whisky Bottled in Bond," have caused the same to be bottled in bond, have applied to the labels thereon the words "Old Crow" in script type, and have caused the same to be sold and transported in interstate commerce, and this with the intent to mislead and deceive the public, and are doing so and will continue to do so unless restrained. An injunction is prayed and an accounting.

Demurrers were filed by the Rock Spring Company and Rosenfield, which were overruled, and they then answered, pleading a prior adjudication based upon the following alleged facts: A suit was brought in the United States Circuit Court for the Eastern Division of the Eastern District of Missouri

by W. A. Gaines & Company against Abraham M. Hellman and Moritz Hellman charging infringement of the trade-mark and unfair competition. The bill was subsequently amended making Max Kahn, administrator with will annexed of the estate of Abraham M. Hellman, deceased, a party to the suit. Upon the issues framed a decree was entered in favor of the complainants, an injunction granted and an accounting ordered.

The decree was reversed by the United States Circuit Court of Appeals for the Eighth Circuit with directions to dismiss the bill on the ground that the evidence clearly showed that the predecessors in business of the appellants therein had adopted the words "Old Crow" as a trade-mark for whisky as early as the year 1863 and the evidence failed to show that the predecessors of the Gaines Company had used the words as a trade-mark prior to the year 1870.

A petition for certiorari to review the decision was denied by the Supreme Court of the United States.

After hearing, a decree was entered sustaining the plea of former adjudication based on the decree of the District Court for the Eastern District of Missouri and accordingly and for that reason the bill of complaint, so far as it sought relief for any infringement of the trade-mark "Old Crow" in connection with its use on whisky was dismissed. And it was further decreed that the registration of the trade-mark July 20, 1909, could not and did not invalidate or nullify the estoppel.

The decree was reversed by the Circuit Court of Appeals and thereupon this certiorari was applied for and allowed.

Messrs. Luther Ely Smith, of St. Louis, Mo., and William T. Ellis, of Owensboro, Ky., for petitioners.

Messrs. Edmund F. Trabue, of Louisville, Ky., James L. Hopkins, of St. Louis, Mo., and Daniel W. Lindsey, of Frankfort, Ky., for respondent.

Mr. Justice McKENNA, after stating the case as above, delivered the opinion of the Court.

The decree of the District Court for the Eastern District of Missouri, directed by the decision of the United States Circuit Court of Appeals for the Eighth Circuit, "is pleaded in bar, and whether it is such depends upon the issues that were made or passed upon in those courts.

The bill of complaint in the case alleged that in 1835 one James Crow (he is the James Crow of this suit) invented and formulated a novel process for the production of whisky which he did not patent or seek to patent but kept for his own use until his death in 1855.

During all of the time after 1835 the whisky so produced was known and styled as "Old Crow" whisky and the designation was adopted and used as a trade-mark.

After the death of Crow one William F. Mitchell, to whom Crow had communicated his secret process, continued the distillation so designated and in 1867 a partnership, styled Gaines, Berry & Co., obtained possession of the distillery wherein the whisky distilled by the indicated process continued to be produced by the same process until Other proceedings were had in the suit the partnership was succeeded by W. A. pending its appeal and afterward. The suit, Gaines & Co., and the latter company suchowever, was finally dismissed on the mer-ceeded also to all of the partnership assets its because of the decision of the Court of Ap- of the other and continued to produce the peals and the action of the Supreme Court of whisky until the incorporation of the comthe United States. plainant, when all these assets were acquired by it.

Defendants are in privity with the parties recovering under those decisions and decrees and are manufacturing whisky under contracts of agency from them or their successors and neither have nor claim any right except through such contract.

When the name "Old Crow" was applied by Crow it was a valid trade-mark and since its adoption it has always been applied to the whisky produced by the indicated secret process, and since that time has indicated to The Hellman Distilling Company filed a the public whisky distilled on Glenn's creek,