lish patent, as there was no other, and the he would necessarily have been compelled right to use those words depended upon the to describe it as "Rahtjen's Composition," existence of the patent, although up to 1878 as there was no other name for the article, [9]the article sent to the United States was and though in England while the patent manufactured in Germany. As the right lasted no one but the patentee or his li to use the word depended upon the English censees could manufacture the article, yet patent, the right to so designate the compo- the description would still have been "Rahtsition fell with the expiration of that pat- jen's Composition;" but when the patent exent, and from that time (1880) until 1883, pired the exclusive right to manufacture when the trademark was obtained by Suter, the article expired with it, while the name Hartmann, & Co., there can be no claim which described it became, under the facts made of an exclusive right to designate the of this case, necessarily one of description, composition as Rahtjen's composition, be- and did not designate the manufacturers. cause from 1880 that right became public There was no other name for the article, as a description of the article, and not of and in order to obtain it a person would the name of the manufacturer. During its have to describe it by the words "Rahtjen's whole existence the name had been given to Composition." The words thus became pubthe article, and that was the only name by lic property descriptive of the article, and which it was possible to describe it. the right to manufacture it was open to all by the expiration of the English patent. After Suter, Hartmann, & Co. obtained the open hand, originally trademark of an painted red, together with the name "Rahtjen's Patent Composition," which was some time in 1883, the paint was sent to the United States under that designation; but the trademark was not obtained without the positive disclaimer by the plaintiffs of the right of exclusive use of the words "Rahtjen's Composition," and unless they disclaimed that exclusive right they could have obtained no trademark.

em

The labels used by Suter, Hartmann, & Co. from the outset of their career as sole consignees contained the description "Rahtjen's Patent Composition, None genuine without signature, Suter, Hartmann, & Co." These labels were affixed to the packages, and were sent to Rahtjen in Germany when he manufactured for them, to be placed on packages, and when he subsequently made the composition in England the labels were sent to him there to be affixed. This way of designating the composition was ployed by Rahtjen in Germany for his own sales, and Suter, Hartmann, & Co. simply copied his method of describing the same. How else could this article thereafter be described? When the right to make it became public, how else could it be sold than by the name used to describe it? And when a person having the right to make it described the composition by its name, and said it was manufactured by him, and said it so plainly that no one seeing the label could fail to see that the package on which it was placed was Rahtjen's composition manufactured by Holzapfel & Co., or Holzapfel's Composition Company (Limited), how can it be held that there was any infringement of a trademark by employing the only terms possible to describe the article the manufacture of which was open to all? Of necessity when the right to manufacture became public, the right to use the only word descriptive of the article manufactured became public also.

Hartmann, La Doux, & Maecker in the Unit-
The registration of the trademark of
ed States in June, 1885, was not only sub-
sequent to the expiration of the English
patent, but also subsequent to the time when
the defendant company had commenced to
manufacture the paint as "Rahtjen's Com-
position, Holzapfel's Manufacture," and had
sent the same to the United States under
that description, at least as early as 1884.
The United States registered trademark[11]
could not, therefore, interfere with the prior
(but not exclusive) right of the defendant
to the use of those words.

The respondent company advertised and sold in the United States the composition under the name of "Rahtjen's Composition, Hartmann's Manufacture," while the petitioner advertised and sold its composition as "Holzapfel's Rahtjen's," or "Holzapfel's Improved Rahtjen's Composition," or "Holzapfel's Improved American Rahtjen's:" so it is seen there is no room for the claim. that the composition manufactured by the petitioner purports to be manufactured by Rahtjen or Hartmann. It is a clear-cut description of the name of the article which it manufactures, and there is no pretense of deceit as to the person who in fact manufactures it.

This rule held good when at the expiration of the patent, in November, 1880, Suter, Hartmann, & Co. continued to send the paint to the United States as "Rahtjen's [10] Patent Composition, *Hartmann's Manufacture," because it is plain that the name of Rahtjen had, as we have said, become descriptive of the article itself, and was not a designation of the manufacturer. It had The trademarks which have been spoken been manufactured both in Germany and in of, and which were obtained in 1883 and England at the same time, and that which 1884, do not cover the right to use the name was manufactured in England by Hartmann "Rahtjen" exclusively. The trademark obBrothers or Suter, Hartmann, & Co. had tained in April, 1883, by Hartmann Brothbeen distinguished from the German article ers, described as the "red hand symbol," by the statement that it was "Rahtjen's does not purport to contain any name, while Genuine Composition, Hartmann's Manufac- that issued to Suter, Hartmann, & Co., while ture." If anyone had desired to use this it contained the name "Rahtjen's Patent paint, and had called for it in the market, Composition," was obtained only by the dis

claimer on the part of the applicants of to 1873, and by the expiration of the Eng-
the right to the exclusive use of those words, lish patent, in 1880, the right to that use
except as part of the combination constitut- had become public. These various assign-
ing the trademark. Prior to the English ors, therefore, did not convey by their as-
patent, the respondent's predecessors or assignment a right to the exclusive use of
signs had no valid trademark in England the words in the United States. The domes-
for the same reason the Rahtjens had ac-
quired none in the United States, viz., they
had no right to designate the composition
as a patented article when in fact there
was no patent. From 1873 to 1880, while
the patent was in life, they were entirely
justified in calling it a patented article, and
when that patent expired it seems clear
they had no right to retain the exclusive
use of the only name which described the
composition, and that no such right could
be claimed by virtue of a valid trademark
antedating the patent, for there was none,
assuming even that such fact, if it had ex-
isted, would have justified the claim to the
exclusive use of the descriptive words after
the patent had expired.

tic trademark, which the respondent also
claims gives it that right, was not used
until after the sale of the composition by [13]
the petitioner in the United States under
the name of "Rahtjen's Composition, Holzap.
fel's Manufacture." We think the princi-
ple which prohibits the right to the exclu-
sive use of a name descriptive of the article
after the expiration of a patent covering its
manufacture applies here.

The judgments in the Antwerp and Ham[12]burg courts simply *showed that in those countries the use of the words "Rahtjen's Composition" or "Rahtjen's Patent Composition" had become descriptive of the article itself, and did not in any way designate the persons who manufactured it; but even without those judgments the record shows beyond question that when the English patent expired the use of the words became open to the world as descriptive of the article itself, and to manufacture an article under that name was a right open to the world. There was no trademark in that name in the United States.

The principles involved in Singer Mfg. Co. v. June Mfg. Co. 163 U. S. 169, 41 L. ed. 118, 16 Sup. Ct. Rep. 1002, apply here.

In the manufacture and sale of the article, of course, no deceit would be tolerated, and the article described as "Rahtjen's Composition" would, when manufactured by defendant, have to be plainly described as its manufacture. The proof shows this has been done, and that the article has been sold under a totally different trademark from any used by respondent, and it has been plainly and fully described as manufactured by defendant or its assignors, the Holzapfels.

We are of opinion that no right to the exclusive use in the United States of the words "Rahtjen's Composition" has been shown by respondent, and that the decree of the Circuit Court of Appeals for the Second Circuit should be reversed, and that of the Circuit Court for the Southern Dis trict of New York affirmed. And it is so ordered.

KNOXVILLE IRON COMPANY, Piff. in
Err.,

บ.

SAMUEL HARBISON.

(See S. C. Reporter's ed. 13-22.)

Constitutionality of statute-redemption of store orders in money-interference with right of contract.

The provision for the redemption of store or

It is said there is a distinction between the case at bar and the one cited, because in the latter the patent and the trademark were both domestic, while here the trademark is domestic and the patent foreign. The respondent claims the right to use these words by virtue of assignments from the Messrs. Rahtjen and also Suter, Hartmann, & Co. in England, and also by virtue of a domestic trademark which it or its predecessors had acquired from user and registration in the United States. The rights of Suter, Hartmann, & Co. to the exclusive use of these words had been disclaimed by thein in 1883, long before any assignment of their rights to the respondent, and we do not see why that disclaimer should be confined to England. It was a general disclaimer of any right whatever to the exclusive use of these words, and it was only upon the filing of that disclaimer that they obtained the trademark which they did in England. The disclaimer, however, was as broad as it could be made. When they assigned their rights the assignment did not include a right to an exclusive use which, in order to Argued and Submitted March 7, 1901. Deobtain the trademark registration, they had already disclaimed. The assignment of the Rahtjen firm could not convey the exclusive right to the use of such words, because they had no valid trademark in those words prior

ders, scrip, etc., in money, which is made by Tenn. act March 17, 1899, requiring all persons who issue such orders to employees in payment of wages to redeem them in money on any regular pay day or at any time within thirty days after they are issued, if presented and payment in money demanded by such employees or by bona fide holders, is not unconstitutional as an arbitrary interference with the right of contract, but is a legitimate exercise of the general legislative power as well as of the police power.

[No. 22.]

cided October 21, 1901.

NOTE.-On the validity and effect of statutes

requiring wages to be paid in lawful moneysee Avent-Beattyville Coal Co. v. Com. (Ky.) 28 L. R. A. 273, and note.

28 L. ed. 585, 4 Sup. Ct. Rep. 652; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Holden v. Hardy, 169 U. S. 391, 42 L. ed. 790, 18 Sup. Ct. Rep. 383; Re Tiburcio Parrott, 6 Sawy. 349, 1 Fed. 506; Stockton Laundry Case, 11 Sawy. 472, 26 Fed. 614; Re Grice, 79 Fed. 627; Re Ja cobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29.

Ibid.

Corporations are "persons" within the meaning of the 14th Amendment, and their property and liberties are protected by its provisions.

to be found in such inferences as may be drawn from the face of the orders and from the custom of the company to issue them and the employees to receive them on other than the regular cash pay days and the fact that no employee has ever presented one of such orders for redemption in anything else than oal. There is no proof of any compulsion on the part of the defendant upon its operatives, except in so far as compulsion may be implied from the fact that unless defend- Every interference by the state with the ant's operatives take their wages in coal rights of liberty and property, not coming orders they must always on each monthly within the legitimate exercise of the police pay day suffer the defendant to be in arrears power, is a deprivation of liberty and propabout twenty days; that is, that on the reg-erty without due process of law, and is unular pay day on that Saturday which is constitutional and void. the nearest the 20th of the month, the defendant will not pay wages except up to the last day of the preceding month, but will pay in coal orders the whole wages due at the end of each week, and that such is the course of business between the defendant and its employees. The complainant purchased 614 of said accepted orders from defendant's employees, and within thirty days from the issuance of each of said orders he presented each of them to the Knoxville Iron Company, defendant hereto, and demanded that it redeem them in cash, which was refused by defendant. Complainant is a licensed dealer in securities, and sent his agents among the employees of the defendant to buy these coal orders. They had previously been selling at 75 cents on the dollar, that is, before the passage of chapter [17] 11, act of 1899, but he instructed his agents to give 85 cents on the dollar, and the orders now in suit were purchased at that price. They amount in dollars and cents to $1,678. There is no evidence of bad faith on the part of the complainant in the purchase of said orders."

The orders sued on in this case were is. sued after the passage of the act of March

17, 1899.

Santa Clara County v. Southern P. R. Co. 118 U. S. 394, 30 L. ed. 118, 6 Sup. Ct. Rep. 1132; Pembina Consol. Silver Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181, 31 L. ed. 650, 2 Inters. Com. Rep. 24, 8 Sup. Ct. Rep. 737; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 32 L. ed. 585, 9 Sup. Ct. Rep. 207; Blake v. McClung, 172 U. S. 239, 43 L. ed. 432, 19 Sup. Ct. Rep. 165.

Whenever the police power of the state is sought to be exercised in matters affecting the public interest, outside of those primary police duties of safety, health, and morals, and inseparably connected with that of every in which the public interest is intimately individual, the impairment of individual rights of property and liberty can only be justified when it is shown to be demanded well being of the community at large, as disby the public welfare and the interest and tinguished from the well-being of a particular class only.

Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499; Boston Beer Co. v. Massachusetts, 97 U. S. 32, 24 L. ed. 992.

From the decree of the chancery court of The rights of property and liberty of one appeals an appeal was taken by the com- class of the community can never be taken pany to the supreme court of Tennessee, by away by the legislature, in the exercise of which court the decrees of the courts be- its police power, merely to secure financial low were affirmed. The case was then advantage to another class of the communibrought to this court by a writ of error al-ty, however large and deserving such other bowed by the chief justice of the supreme class may be. court of Tennessee.

Mr. Edward T. Sanford argued the cause, and, with Messrs. Cornelius E. Lucky and James A. Fowler, filed a brief for plaintiff in error:

Among the rights of liberty and property protected by the provision of § 1 of the 14th Amendment to the Constitution of the United States, that no state shall "deprive any person of life, liberty, or property without due process of law," are the right to the acquisition and disposition of property, the right to labor in any lawful employment, and the right to enter into any lawful contract in reference to property or labor.

The right of contract and other rights of liberty and property may be more freely infringed when necessary to protect the public safety, health, or morals than they can for the indefinite purpose of promoting the public welfare in general. This arises from the paramount duty of the state to protect the life, health, and morals of its citizens, their preservation constituting an overruling necessity which often justifies interference with individual rights that would be exempt from infringement upon general and indefinite considerations of public benefit.

Holden v. Hardy, 169 U. S. 397, 42 L. ed. 792, 18 Sup. Ct. Rep. 383.

The legislative justification for depriving U. S. Const. 14th Amend. § 1; Slaughter- any citizen of his life and property must be House Cases, 16 Wall. 127, 21 L. ed. 425; based upon a public benefit that is reasoraButchers' Union S. H. & L. S. L. Co. v. Cres-bly certain, and not merely upon conjectures cent City L. S. L. & S. H. Co. 111 U. S. 746, and possibilities.

Re Morgan, 26 Colo. 415, 47 L. R. A. 52, |74; Opinion of the Justices, 163 Mass. 587, 58 Pac. 1071; People v. Jackson & M. Pl. Road Co. 9 Mich. 295.

While there is a presumption in favor of the validity of state legislation, yet the leg-| islative determination is subject to revision by the courts, and the attempted exercise of police powers will not be upheld if it bears no substantial relation to the welfare of the public at large, and arbitrarily interferes with the rights of individuals under the guise of protecting the public interest. The police power cannot be put forward as an excuse for oppression and unjust legislation. Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064: Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Palmer v. Tingle, 55 Ohio St. 423, 45 N. E. 313; Guthrie, 14th Amend. p. 76. This legislation cannot be sustained, even though many contracts are embraced within it which are legitimately the subject of legislation, since, if it interferes with a single class of contracts which are proper in themselves and are protected by the Constitution, the act must fall as a whole..

Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Third Nat. Bank v. Divine Grocery Co. 97 Tenn. 603, 34 L. R. A. 445. 37 S. W. 390.

Public policy requires the utmost liberty of contracting.

Printing & Numerical Registering Co. v. Sampson, L. R. 19 Eq. 462.

Under the overwhelming weight of authority, statutes which attempt to enforce the payment of wages in money, and take away from the employer and laborer the right of contracting otherwise, are invalid and unconstitutional.

Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354; Showalter v. Ehlan, 5 Pa. Super. Ct. 242; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 10 S. E. 285; State v. Peel Splint Coal Co. 36 W. Va. 802, 17 L. R. A. 385, 15 S. E. 1000; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350; Hancock v. Yaden, 121 Ind. 366, 6 L. R. A. 576, 23 N. E. 253; State v. Haun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340.

sub nom. Rc House Bill, No. 1230, 28 L. R. A. 344, 40 N. E. 713; Com. v. Perry, 155 Mass. 117, 14 L. R. A. 325, 28 N. E. 1126; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454; Re Kuback, 85 Cal. 274, 9 L. R. A. 482, 24 Pac. 737; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 59 N. W. 362; Com. v. Hamilton Mfg. Co. 120 Mass. 383; State v. Wilson, 61 Kan. 32, 47 L. R. A. 71, 58 Pac. 981; Re Eight Hour Bill, 21 Colo. 29, 39 Pac. 328; Re House Bill, No. 203, 21 Colo. 27, 39 Pac. 431; State v. Holden, 14 Utah, 71, 37 L. R. A. 103, 46 Pac. 756, 14 Utah, 96, 37 L. R. A. 108, 46 Pac. 1105; Short v. Bullion-Beck & C. Min. Co. 20 Utah, 20, 45 L. R. A. 603, 57 Pac. 720; Re Morgan, 26 Colo. 415, 47 L. R. A. 52, 58 Pac. 1071; Re Considine, 83 Fed. 157; Cox v. Pittsburgh, C. C. & St. L. R. Co. 1 Ohio N. P. 213; Skinner v. Garnett Gold-Min. Co. 96 Fed. 735; Johnson v. Goodyear Min. Co. 127 Cal. 4, 47 L. R. A. 338, 59 Pac. 304; Whitebreast Fuel Co. v. People, 175 Ill. 51, 51 N. E. 853; Com. v. Brown, 43 W. N. C. 69. See also Tiedeman, Pol. Power, § 178.

The attempts of the legislature in other analogous cases to deprive individuals of liberty and property under the guise of the police power have likewise been uniformly held unconstitutional by the courts.

Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29; People v. Gillson, 109 N. Ỷ. 389, 17 N. E. 343; Third Nat. Bank v. Divine Grocery Co. 97 Tenn. 603, 34 L. R. A. 445, 37 S. W. 390; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116. 43 L. R. A. 264, 51 N. E. 1006.

If the statute itself transcends the legitimate authority of the state, and attempts to interfere with the property or liberties of individuals beyond the proper police power of the state, it is, for this reason, not due process of law, and is repugnant to the 14th Amendment.

Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Holden v. Hardy, 169 U. S. 367, 42 L. ed. 780, 18 Sup. Ct. Rep. 383.

more nearly analogous to the Granger Cases, 94 U. S. 155, 24 L. ed. 94, and other cases in which it has been held that the state, in the exercise of its police power, may not only regulate the charges of common carriers, but may regulate the charge for storing grain in bulk in warehouses as a business "affected with a public interest."

Similar attempts of state legislatures to arbitrarily interfere with the relationship of employer and employee in other matters, and to deprive them of the right of mutual Insurance cases are distinguishable from contract, have also been held unconstitution- the case at bar because of the peculiar naal by a well-nigh unbroken line of authority.ture of insurance contracts, and they are Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631; Frorer v. People use of School Fund, 141 Ill. 171, 16 L. R. A. 492, 31 N. E. 395; Ramsey v. People, 142 Ill. 380, 17 L. R. A. 853, 32 N. E. 364; Braceville Coal Co. v. People, 147 111. 66, 22 L. R. A. 340, 35 N. E. 62; Harding v. People, 160 Ill. 459, 32 L. R. A. 455, 43 N. E. 624; Bauer v. Reynolds, 3 Pa. Dist. R. 502; Com. v. Brown, 6 Pa. Dist. R. 773; State v. Fire Creek Coal & Coke Co. 33 W. Va. 188, 6 L. R. A. 359, 10 S. E. 288: State v. Julow, 129 Mo. 163, 29 L. R. A. 257, 31 S. W. 781; Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 407, 23 L. R. A. 264, 25 S. W. 75; State ex rel. Curtis v. Brown & S. Mfg. Co. 18 R. I. 16, 17 L. R. A. 856. 25 Atl. 246; Shaffer v. Union Min. Co. 55 Md.

Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; People v. Budd, 117 N. Y. 1, 5 L. R. A. 559, 22 N. E. 670.

Statutes regulating the contract rate of interest for the use of money furnish no real exception to the rule contended for, but are to be supported as a traditional policy of the race, rooted in abhorrence of usury from the earliest times.