Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1879-11-18
LEGAL WISDOM.
U. S. SUPREME COURT DECISIONS.
A case Involving the Taxation of Bonds
The Trademark Law De-
cided Unconstitutional.

Litchfeld county, Connecticut The
question presented by thiscase is wheth-
er the plaintiff in error, citizen oi Con-
necticut, can be righ.fully taxed by that
State, under its laws, on certain bonds
owned by him but held in the city OF
Chicago and secured by deeds OF trust
on real estate located in that city. The
Supreme Court Of Errors OF Connecticut
held that the assessments, OF which the
plaintiff in error complained, were IN
conformity to the State laws, and that
the law did not infringe upon any OF
the complainant's Constitutional rights.
This Court sustains the view OF the
lower tribunal and holds that the locality
of debt for purposes Of taxation Is not
affected by the fact that it is secured by
a mortgage on real estate situated in
Illinois State tax on forelgn-hed bonds
Is Wall, 323); that the debt has It's
situs at the creditors residence, and 1t
is for the State to determine whether or
not it shall be taxed. The discretion OF
the State in this respect is not, in the
opinion of the Court, subject to super
vision or control by the Federal gov
ernment in any Of its departments, for
the reason that such taxation violates
no provision of the Federal COnstitu-
ton. The judgment OF the Supreme
Court of Errors of Connecticut Is
affirmed with costs.
Trade Marks.
No. 7O5. The United States plaintiffs
vs.. Emil Sleilens, and No. I'll, the
United States plaintiffs vs.. AdOlph Wit
teman, on certificates of division from
Circuit Court of the United States for
the Southern District OF New York, and
No. 40, United States plaintiffs
VS.. W. W. Johnton ct al, on certificate
for division from the Circuit Court OF
the United States for the Southern Dis
trict of Ohio. These three cases are
prosecutions for violations OF what are
known as trademark laws embodied in
sections ,937 10 4,947, revised statutes.
The question upon which the Judges OF
the lower courts were divided in opinion
is "whether the acts OF Congress on the
subject of trade marks are founded on
any rightiul authority in the Constltu-
ton OF the United States. Ii was
maintained here by council who sought
an affirmative answer To- this question
that there are two clauses of the fed
cral Constitution which furnish a sutii-
cieut warrant Tor legislation in dispute.
The first is the 50 the clause of Section $,
Article /, which provides that Congress
shall have the power to pass laws, to
promote the progress of science and the
useful arts by securing fOr limited times
10 authors and inventors the exclusive
right 20 their respective writings and dis
cOveries.' With regard 10 this point
the court holds that the ordinary trade
mark has no necessary relation to an
invention or discovery, that it is gener-
ally the outgrOwtb OF considerable per-
ioi Of use rather than OF sudden inven-
ton, and is often the result oi an acc-
dent than OF design. The attempt
TO classify trade marks with
writings of authors is open TO Oh
jeCtiOus equally strong. The latter in
volve an element of originality rs do
also inventions, while 4 trade mark Is
generailvuuthing more than an adoption
of something already in existence, as
distinctive symbol OF the person using II.
IL does not depend upon the novelty OF
the invention, discovery or any work Of
the brain, but is founded simply on the
priority of appropriation. This court
is therefore OF the opinion that while
such legislation as that in question may
be a iudiciOus aid 10 the common law on
the subject OF trade marks, and
NAV be within the competency OF the
legislatures, whose general powers
embrace that class OF subjects, 1t Is
1.
vision concerning authors and inven-
tors and their writings and discoveries.
The other clause of the Constitution re-
lied on To- support this legiStiOn IS the
third of the same section, which pro-
vidrs that Congress shall have power
'.to regulate commerce with foreign ma
tions and among the several States and
with the Indian tribes" The argu-
meut Is that q trade mark is used To
identity particular class or quality OF
goods, and that as SO used it is valuable
aid idOrinstrumcutOtCO ,andcOmes
within the scope OF the Constitutional
provision cited. With regard 10 this
point the Court believe first, That the
clause quoted does not bring within the
control OF Congress every species of
property which is subject OF COM
mcrrc, or which is used i'm commerce
Wallace v. louisiana, 5 How, 49,
Paul ". Virginia, 5 Wall, 1861, and
that the legislation now in question does
not limit the use Oi landmarks 20 inter-
state or international commerce, as 1t
should do if it be based on the COnsti-
tuition or provision now quoted in It's
support. Ii it rciereS 10 all trade and
To commerce between all points, 1t Is
obviously exercised of power not con-
icrrrl upOu Congress. That this is the
purposc of this legislation seems
i'm the opinion OF the Court
to Le evident. 1t Coutemplutes
the establishment OF a universal sys-
tenn Of trademark registration ior the
benefit of all who have already a trade
mark. or who wish to adopt one in the
future. without regard % the character
oi the trade 10 which it IS 10 be applied
or to the locality OF the owner, such
legislation Is, i'm the opinion OF this court,
i'm excess of Congressional power. 1t
has been urged that ii Congress has
power % regulate the trademarks used
i'm commerce with other nations and
and among the several States. its legiS-
lation, So lar rs IL relates TO that class OF
cases, should bee held valid, but to this
the court holds there are two objection:
First, that there is nothing to show that
the trademarks i'm the three causes now
under consideration were used in that
kind OF commerce; and second, that it
is not within the judicial province to
give the words used by Congress a mar
rover meaning than they are manifest
lv intended to bear. Todo so would be
virtually 70 make law which would be
only partial in its operation, and which
would cOmplicate rights which parties
would hold in some instances under the
act of Congress, and in others
under the State law. The court
wishes 10 be understood as
leaving the whole question OF the treaty
making power of the general govern
ment over trade marks, and the duty OF
Congress to pass any laws necessary to
carry such treaties into effect, un-
touched. The qucS,iap in each OF these
cases. viz: whether these statutes can
be upheld in whole or in part as valid
and Constitutional. must be answered
n, tI, ,,,.r,t ti,- ,,,l r. will ha sD pprtI Itiai