So, in the present case, it cannot be successfully contended that the monopoly of a copyright is in this respect any more extensive than that secured under the patent law. No more than the patent statute was the Copyright Act intended to authorize agreements in unlawful restraint of trade and tending to monopoly, in violation of the specific terms of the Sherman law, which is broadly designed to reach all combinations in unlawful restraint of trade and tending because of the agreements or combinations entered into to build up and perpetuate monopolies.

From the finding of facts upon which the court certified the question decided to the court of appeals, after the attempted re-formation in view of the first decision of that court, it appears that the Publishers' Association was composed of probably seventy-five per cent of the publishers of copyrighted and uncopyrighted books in the United States and that the Booksellers' Association included a majority of the booksellers throughout the United States; that the associations adopted resolutions and made agreements obligating their members to sell copyrighted books only to those who would maintain the retail price of such net copyrighted books, and, to that end, that the associations combined and coöperated with the effect that competition in such books at retail was almost completely destroyed. The findings further show that the associations employed various methods of ascertaining whether prices of net copyrighted books were cut and whether there was competition in the sale thereof at retail, and issued cut-off lists, so-called, directing the discontinuance of the sale of such books to offenders, and that the plaintiffs in error, who had failed to maintain net prices upon copyrighted books, had been put upon the cut-off lists and were unable to secure a supply of such books in the ordinary course of business. It further appears that in some instances dealers who had supplied the plaintiffs in error were wholly ruined and driven out of business; that the Booksellers' Association widely circulated the names of such dealers and warned others to avoid their fate, and that various circulars were issued to the trade at large by both associations warning all persons against dealing with the plaintiffs in error or other so-called pricecutters; that after the re-formation of the resolutions and agreements in 1904 the associations and their members continued the same methods as to ascertaining the supply of copyrighted books of the plaintiffs in error, as to cut-off lists and circulars to the trade, and that, although in 1907 the resolution of the Publishers' Association was modified so that the "agreement" became a "recommendation," the cut-off lists were still issued, with plaintiff's name thereon and that the dealers still refused to supply plaintiffs in error with books of any kind. And it also appears from the finding of facts that the members of the associations resided in and carried on the business of

selling books in many different States and purchased books from persons in many States other than the one in which they resided and did business; and that the rules, regulations, and agreements of the associations were enforced against all publishers and dealers in books throughout the United States, whether they were members of either association or not and whether they purchased books in one State for transportation and delivery in another or for delivery in the State where purchased.

We agree with the court of appeals in its characterization of the agreement involved in this case, about which there seems to have been no difference of opinion, except as to the supposed protection of the Copyright Act. It manifestly went beyond any fair and legal agreement to protect prices and trade as among the parties thereto and prevented, as the court of appeals said, when dealing with uncopyrighted books, the sale of books of any kind, at any price, to those who were condemned by the terms of the agreement and with whom dealings were practically prohibited. We conclude, therefore, that the court of appeals erred in holding that the agreement was justified by the Copyright Act, and was not within the denunciation of the Sherman Act, and in denying, for that reason alone, the right of the plaintiffs in error to recover under the State act as to copyrighted books.

This view of the case renders it unnecessary to decide whether an original action can be maintained in the State courts seeking an injunction and to recover damages under the Sherman law.

As the Federal question, made in the manner which we have stated, was in our view wrongly decided and such decision was the basis of the judgment in the State court, the judgment of that court must be reversed. (Murdock v. City of Memphis, 20 Wall., 590.)

Judgment reversed and case remanded to the State court whence it came for further proceedings not inconsistent with this opinion.

[Supreme Court of the United States.]

STREET AND SMITH V. THE ATLAS MANUFACTURING Co. et al.

Decided December 1, 1913.

198 O. G., 704; 231 U. S., 348.

1. TRADE-MARKS-DECREE OF THE CIRCUIT COURTS OF APPEALS ARISING UNDER ACT OF FEBRUARY 20, 1905-REVIEWABLE BY SUPREME COURT ONLY ON CERTIORARI.

Judgments and decrees of the circuit courts of appeals arising under the Trade-Mark Act of February 20, 1905, are reviewable by the Supreme Court only on certiorari and not on appeal or writ of error. Appeals in such cases are not allowed under section 128 of the Judicial Code.

72367°-15-23

2. SAME-SAME-SAME.

The intent of Congress, as indicated in the provisions of the Judicial Code relating to the jurisdiction of the Supreme Court, was to extend rather than contract the finality of decisions of the circuit courts of appeals. By the act of February 20, 1905, Congress placed trade-mark cases arising under that statute upon the same footing as cases arising under the patent laws as respects the remedy by certiorari under the Circuit Court of Appeals Act.

3. SAME-ACT OF FEBRUARY 20, 1905-SECTION 18 NOT REPEALED BY JUDICIAL CODE.

Section 297 of the Judicial Code did not repeal section 18 of the TradeMark Act of February 20, 1905.

APPEAL from the United States Circuit Court of Appeals for the Eighth Circuit.

Mr. Hugh K. Wagner and Mr. Leonard J. Langbein for the appellants.

Mr. James Love Hopkins and Mr. Neison Thomas for the appellees.

Mr. Justice VAN DEVANTER delivered the opinion of the Court:

This is an appeal from a decree of a circuit court of appeals directing the dismissal of a suit to enjoin infringement of a registered trade-mark and unfair trade. (204 Fed. Rep., 398.) The decree was rendered and the appeal allowed after the Judicial Code, adopted March 3, 1911, (36 Stat., 1087, c. 231,) became effective. Our jurisdiction is challenged by a motion to dismiss, and if we have jurisdiction it is solely because the case was in part one arising under the act of February 20, 1905, infra, under which the trade-mark was registered. Whether in a case so arising the judgment or decree of a circuit court of appeals may be reviewed by this Court upon an appeal or writ of error, or only upon a writ of certiorari, is the question for decision.

Section 128 of the Judicial Code declares that, except as provided in sections 239 and 240,

the judgments and decrees of the circuit courts of appeals shall be final * in all cases arising under the patent laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in admiralty cases.

Section 239 permits the certification to this Court of questions of law by a circuit court of appeals concerning which it desires instruction for the proper decision of a case within its appellate jurisdiction, and is not important here. Section 240 reserves to this Court the discretionary power to require, by certiorari, upon the petition of a party, that any case in which the decision of a circuit court of appeals is made final by the code be certified here for review and deter

mination, with the same power and authority in the case as if brought here by appeal or writ of error. Section 241 declares that any case in which the decision of a circuit court of appeals is not made final by the code may be brought here, as of right, by appeal or writ of error, if the matter in controversy exceeds $1,000, besides costs.

These provisions, it is said by counsel for the appellants, enabled them to appeal, as of right, the statutory amount being involved, and did not remit them to the discretionary writ of certiorari; the argument being that section 128 enumerates the cases in which the decisions of the circuit courts of appeals shall be final and does not include among them cases arising under the trade-mark laws, and that section 241 gives an appeal or writ of error, as of right, in any case in which the decision of the circuit court of appeals is not thus made final, if, as here, the requisite amount is in controversy. If the question turned entirely upon the code provisions relied upon, the argument probably would be convincing. But there are other statutory provisions which must be considered, some within and others without the code.

The code does not purport to embody all the law upon the subjects to which it relates. It contains some new provisions and some that are modifications of old ones, but much of it is merely a reënactment of prior laws with appropriate regard to their proper classification and orderly arrangement. Among others, it contains the following provisions bearing upon the extent to which it was intended to affect or repeal prior laws:

SEC. 292. Wherever, in any law not contained within this act, a reference is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this act into which has been carried or revised the provision of law to which reference is so made. SEC. 294. The provisions of this act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no implication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest.

* * * * * *

SEC. 297. The following sections of the Revised Statutes and acts and parts of acts are hereby repealed: [many sections, acts, and parts of acts are here enumerated] Also all other acts and parts of acts, in so far as they are embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this act had not been passed.

Sections 128, 239, 240, and 241 of the code, as before described, substantially, almost literally, repeat the provisions of section 6 of the Circuit Courts of Appeals Act of March 3, 1891, (26 Stat., 826, c. 517.) There is but a single change deserving mention here, and it is that cases arising under the copyright laws are in section 128 added to the enumeration of cases in which the decisions of the circuit courts of appeals are declared final. But this has no bearing

upon cases arising under the trade-mark laws, save as it indicates that Congress was extending, rather than contracting, the list of cases in which finality attaches to the decisions of the circuit courts of appeals. Passing this consideration, there is nothing in the code denoting a purpose to change the existing appellate jurisdiction in trade-mark cases: it is left as it was before.

The Trade-Mark Act of February 20, 1905, (33 Stat., 724, c. 592,) dealt with the subject we are considering. By section 17 it invested the circuit courts of appeals with appellate jurisdiction of cases arising under that act, and by section 18 declared that writs of certiorari might be granted by this Court for the review of decisions of those courts in such cases "in the same manner as provided for patent cases" by the Circuit Courts of Appeals Act. In placing such trade-mark cases upon the same footing as cases arising under the patent laws, as respects the remedy by certiorari, Congress undoubtedly intended that this remedy should have the same attributes in the one class of cases as in the other. We already have seen that the Circuit Courts of Appeals Act, in section 6, made it exclusive in cases arising under the patent laws. Before the adoption of the code, this Court said in Hutchinson, Pierce & Co. v. Loewy, (C. D., 1910, 512; 155 O. G., 556; 217 U. S., 457,) a case like this:

We are of opinion that this appeal will not lie and that the remedy by certiorari is exclusive. * * * We think that the language of section 18 places suits brought under the Trade-Mark Act [February 20, 1905] plainly within the scope of the act establishing the court of appeals [March 3, 1891], and that a final decision of that court can be reviewed in this Court only upon certiorari. Of course, that case and this are not to be confused with others arising under earlier trade-mark laws not containing any provisions respecting appellate jurisdiction such as are embodied in the act of 1905.

The provisions of that act upon this subject are not among those enumerated in section 297 of the code as thereby repealed, and neither do they appear to have been embraced within and superseded by the code. And while the Circuit Courts of Appeals Act, to which section 18 of the act of 1905 makes reference, has been superseded by being incorporated into the code, that section has not thereby lost any of its original effect, for section 292 of the code requires the reference to be construed as if naming the very sections of the code into which the Circuit Courts of Appeals Act has been carried.

It follows that the motion to dismiss the appeal must be sustained, as was done in Hutchinson, Pierce & Co. v. Loewy, supra.

Appeal dismissed.