The Birmingham age-herald., 1909-01-14

be invalid as the complainant insists. Complainant Is not engaged in the manu- featuring business in this state. It has no property here which is employed in that business, the usefulness or value Of which will be impaired or destroyed, if the prohibition law is invalid, by the threats complained of. The only injury of which it complains is that wholesalers and retailers in consequence of the threats of prosecution, under what Is claimed to be the invalid law, will not longer pur- chase its beer and malt liquors. The bill 1t seems to the court, is not sus- ceptible of the construction that com- plainant has compiled with the constftu- ton and laws of this state so as to au- thorize it. the prohibition law being out of the way to engage in business Of any kind within this state, or that any threats have been made against 1t to prevent It from engaging in business here. True 1t alleges the tender of $10 to the secretary of state for the purpose of admitting it to do business here but it Is not ai- legged that it has by proper instrument designated a known place of business in this state and an authorized agent or agents residing thereat, nor that 1t has filed with the secretary of state q copy of it's charter. If it be conceded that complainant stand, after the tender to the secretary of state, as though IL had a license to exercise it's corporate func- tions in this state, that only authorizes if to make contracts within this state within the purview of It's charter It would not license it to engage in the business of a wholesaler or retailer of beer in this state It could not carry on that occupation without complying with the license law in that respect and paving the price of the license. Com plainant, therefore, stands as having no right even the prohibition law set aside, itself to carry on it's business or sell it's product in this state.
 Equity of Bill.
 The wholesalers and retailers whose in timidation Is complained of, have not qualified themselves in any way to sell complainant s product It is difficult, therefore. to see how complainant can hinge any equity in its bill upon the destruction of the good will of It's busi- ness by their failure to purchase It's goods. It is true that the invisible, intangible expectation of future profits from GUS toners attracted by the excellence Of the product, and the management of the bus mess which is denominated Its good VIII is a valuable property right which exists wherever markets may be found without any reference to the original place of manufacture. and Is protected in any forum where that good will is attacked by unlawful means, preventing customers from buying; but the foundation of the right of a court of equity to protect the good will of a business depends upon the question whether the owner has the right to sell his product in the locality where it's putative customers are prevented from buying its product. If neither he nor the resident wholesalers or retailers of whose intimidation complaint Is made have any right to sell and therefore Will not buy the article in the locality where the intimidation is practiced, and per sons are thereby prevented from becom- ing purchasers, the intimidation or sueh would-be purchasers, Is not in law, an attack upon the good will of the business. and furnishes no basis for bill to pro tect it.
 The prohibition statute does not inter- fere with sales of beer in interstate trans- actions The complainant has no author ity to sell it's beer in domestic or WHOLLY state transactions, even with the pro- hibition law out of the way. Having no right to sell it's beer here otherwise than in interstate transactions to wholesalers and retailers. 1t has no good will in that resnect which the law can protect, since the good will which the law protects must grow out of and be bottomed upon the right to sell. If complainant itself has no right to sell its beer here, and the wholesalers and retailers, whom 1t IS al- leped are deterred from becoming pur- chasers of it's beer, have no license or authority themselves to resell It, threats to proceed against the wholesalers and retailers. who are not qualified to do such business, even if the prohibition law De void. give no cause of action in faVof or the complainant, because in the iast an alysis, the only effect Of such threat IS to prevent either the complainant or the wholesalers and retailers from doing that which the law forbids them to do. More over intunction issued at the instance of a manufacturer, to prevent the execu- tion of au alleged invalid law against third persons. who but for the fear of the law which prevents them from reseiilng, would become purchaser though they had moi contracted to do so, on the ground that if was necessary to protect the good will of the business, would carry the doc- Urine of the power of court or equity to interfere for the protection Of such right to startling lengths, especidi5 "Hch as here. the law complained of is not directed specially against complainants wares, but operates upon every one who sells the forbidden goods in. the state. There is no such privlty in right between the manufacturer and such third person, as authorizes the manufacturer to com nlain. and the injury Is too remote and indirect to give legal cause of action to the manufacturer, even though the law be invalid.
 Validity of Law
 If. however, the court is mistaken in the foregoing analysis of complainants bill and the general allegation therein that at all times herein mentioned, in carrying on it's business as aforesaid, com plainant has observed such local rules and regulations and compiled with such statutes of the state of Alabama, and of the United States as were applicable''- should be taken to mean that complain ant has compiled with the constitution and laws of this state by filing the prop CT papers with the secretary of state and taking out the proper licenses for it's agents, then 1t becomes necessary to con sider the validity of the prohibition law. If complainant and its agents are author ized to sell it's product in this state, and have complied with the state laws in that respect and the prohibition statute be unconstitutional, then the threats of the