The Laurens advertiser. (Laurens, S.C.) 1885-1973, 1894-02-13
THE TRADEMARK PALMETTO.
The Commissioner of Patents is Sus-
tained by the Court of Appeals.

The Commissioner of Patents is Sus-
tained by the Court of Appeals.
Washington Post, Feb G.
Gov. Tillman, of South Carolina, will
have to prolong his legal fight II he
would still have trade mark for Pal
mctto whiskey registered in the Patent
Office. The Court of Appeals handed
down an opinion yesterday by which
the decision of Justice Bradley in the
Circuit Court is reversed, and the right
OF the Commissioner to refuse registra-
tion was upheld.
The Governor applied for the trade
mark July 10, 1893, on behalf of the
State Of South Carolina, which should
consist of the word Palmetto" After
passing through the various stages of
the Patent Office examination the mat
ter was heard before the Commission
er August 30, 1893. He refused the
application on the ground that not
withstanding tho acts of the Governor
and the board of control, the State of
South Carolina had no authority to
trade in liquors outside it's own limits.
and was not the owner of n trade mark
sought to be registered.
A petition for a writ of mandamus
was then filed and was heard before
Judge Bradley in Circuit Court No. 1
where 1t was granted and peremp-
tory command issued to the Commits
sioner to register the trade mark as
requested. The Commissioner forth
with appealed from the decision, and
1T was argued before Chief Justice AL
vev and Justices Morris and Shepard.
DUTIES OF THE COMMISSIONER.
The opinion which was handed down
yesterday was written by Justice Shep-
ard. 1t states that the points on which
the case turns are, first: On the argu-
ments that the duties of the Commits
sloncr of Patents as prescribed by law
are not ministerial simply, but are such
as to call for the exercise Of judgment
and discretion and that his decision
having been made in the performance
OF this discretionary duty it is not sub
jcct to revision by the courts The
other argument is to the effect that
the State of South Carolina is not en-
titled to have this trademark regis
tered because she is not and and can
not be lawfully engaged in foreign
commerce.
AS to the writ of mandamus. the
court holds that it will not lie save in
a plain case and where there is no
other legal remedy. Under no cir
as a writ of error. 1t maintains that
thero is Il distinction between official
acts and duties that are ministerial
and between those that are judicial.
The official act is where the law pre-
scribes plainly and demands the doing
of Il specific thing. Then he has no
alternative but obedience. But in the
present case discretion is necessary on
the part Of the Commissioner and his
action ceases to be ministerial and be-
comes quasi judicial. His duties are
different than those of register of
deeds. with which he has been COM
pared
The court holds also that no appeal
will lie in cases which involve the
trademark act to their jurisdiction, as
it does in cases of refusal to grant a
patent. The fact that q trademark
has been used for years and that it has
the quasi character OF a trademark at
common law does hot make it such in
the meaning of the statute enacted by
Congress unless it has been used in
commerce with foreign nations or with
Indian tribes. Although there is no
provision as to the manner in which he
shall inform himself as to the lawful
ness of an application it is still to be
inferred that he is free to choose how
he shall obtain this information. The
limitation OF the effect Of the Commits
sioncr's decision does not in letter or
in spirit show that his action in the
premises is to be without the exercise
OF discretion.
STATE CONTROL OF THE LIQUOR TRAF-
FIC.
AS to the power of the State to en-
gage in foreign trade tho court inter-
prcts the act of the State of South
Carolina, which took effect July /,
1893, to be that the State wished to as
sumo police power as far as the sale of
Intoxicating liquors was concerned
and that the matter Of revenue was en-
tirely incidental. If the supreme
question had been the collection of
revenue, and the object was the maxi
ing of money, the question would arise
as to the power Of the State to legis-
late in this manner without express
authority in the constitution. If such
question was presented to the court
the opinion states tina. it would have
no hesitation in declaring that the
the State did not have this power.
In conclusion, the court maintains
that it can find no justification of the
right of the State to trade in liquors
outside its own limits. The sending of
case to Canada. which was offered as
an example that the State should trade
outside its limits. was not an act of the
State, but of the officials, and it could
not be designated as lawful foreign
commerce.
Mcssrs. J. Edgar Smith and J. AL
thcus Johnson, who appeared for Gov.
Tillman, were unwilling to state posi-
lively whether the case would be car
ried to the Supreme Court of the
United States. but it had been the un-
dcrstanding ever since the legal CON
test began that it would not be allowed
to rest until the question was decided
by the court of last resort