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templated the performance of services and | ratus, together with his employés, superinthe furnishing of the necessary materials for tended and conducted the operation of raisthe repairs of the steamship Yucatan. It ing and lowering the vessel and also of fixing was an entire contract, intended to take the her upon the ways preparatory to the re ship as she was and to discharge her only pairs, a service requiring skill and experience when completely repaired and fit for the and essential to the process of repair. Mr. Alaskan voyage. It did not contemplate, as Justice Nelson held there was no substantial is contended by appellant, either a lease, or distinction between such a case and the case a contract for use in the nature of a lease, of where the shipmaster was employed to make the libelant's marine railway and machine the repairs; and that the admiralty jurisshop. The use of these was but incidental; diction must be sustained. the vessel being hauled out, when consistent Nor is the present case to be distinguished with the progress of other work of the Ship-upon the ground that the repairs in which building Company, for the purpose of exposing the ship's bottom to permit of the removal and replacement of the broken plates and the examination of the propeller and tail shaft. In The Planter (Peyroux v. Howard), 7 Pet. 324, 327, 341, 8 L. Ed. 700, the vessel, requiring repairs below the water line as well as above, was to be and in fact was hauled up out of the water; and it was held that the contract for materials furnished and work performed in repairing her under these circumstances was a maritime contract. We think the same rule must be applied to the case before us; that the doubt intimated in The Robert W. Parsons, 191 U. S. 17, 33, 34, 24 Sup. Ct. 8, 48 L. Ed. 73, must be laid aside; and that there is no difference in

libelant was to furnish work and materials and the use of a marine railway and other equipment were to be done under the superintendence of the Steamship Company. This affected the quantum of the services and the extent of the responsibility, but not the essential character of the services of the nature of the contract, which, in our opinion, were maritime.

Decree affirmed.

(249 U. S. 72)


character as to repairs made upon the hull (Submitted Jan. 22, 1919. Decided March 3,

of a vessel dependent upon whether they are made while she is afloat, while in dry dock, or while hauled up by ways upon land. The nature of the service is identical in the several cases, and the admiralty jurisdiction extends to all.

This is recognized by the Act of Congress of June 23, 1910 (chapter 373, 36 Stat. 604 [Comp. St. § 7783]), which declares that "any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domestie," upon the order of a proper person, shall have a maritime lien upon the


1919.) No. 180.

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Treaty of Paris 1898, arts. 8, 13, providing that cession of Philippine Islands to United States shall not impair property rights of individuals or associations, and continuing in force rights of property secured by patent and copyright, is not involved, within Judicial Code, § 248, by decision of Supreme Court of Philip pine Islands, in action for infringement and unfair competition by Philippine association having Spanish trade-mark in La Flor de la Isabela, that action was for wrongful use of name "Isabela," which was a geographical name incapable of registration as trade-mark, and that no unfair competition was shown.

Appeal from the Supreme Court of the Philippine Islands.

The principle was recognized long ago by Mr. Justice Nelson in a case decided at the circuit, Wortman v. Griffith (1856) 3 Blatchf. 528, 30 Fed. Cas. 648, No. 18057, which was a libel in personam to recover compensation for services rendered in repairing a steamboat. Libelant was the owner of a shipyard with apparatus consisting of a railway cradle and other fixtures and implements used for the purpose of hauling vessels out of the water and sustaining them while being repaired. Certain rates of compensation were charged for hauling the vessel upon the ways, and a per diem charge for the time occupied while she was under repair, in cases where the owner of the yard and apparatus was not employed to do the work but the repairs were made by other shipmasters, as was done in that case. The owner of the yard and appa- C., for appellee.

Suit for infringement of trade-name by the Compania General de Tabacos de Filipinas against the Alhambra Cigar & Cigarette Manufacturing Company. From a de cree of the Supreme Court of the Philippine Islands, reversing a decree of the court of the first instance, plaintiff appeals. Appeaì dismissed.

*Mr. F. C. Fisher, of Manila, P. I., for appellant.

Mr. H. W. Van Dyke, of Washington, D.

For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


Mr. Justice DAY delivered the opinion of that court found in favor of the defendthe Court. ant upon both issues, and directed a reversal of the judgment below. 33 Phil. Rep. 485. Appeal to this court was sought and allowed upon the ground that the judgment of the Supreme Court was in an action which involved the Paris Treaty of 1898 between the United States and Spain, because it is therein provided that the property rights of private establishments or associations having legal capacity to acquire and possess property, and especially the rights of property secured by copyrights and patents acquired by Spaniards in the Philippine Islands at the time of the ratification of the treaty, shall not be impaired, but shall continue to be respected.

Suit was brought by the appellant, a corporation organized under the laws of Spain, in the Court of First Instance of Manila. The complainant set up: That for more than 27 years it had been engaged in the business of manufacturing cigars and cigarettes in the Philippine Islands. That its factory is known as "La Flor de la Isabela," which name is used upon the packages and containers of the products manufactured by complainant and on the advertising matter in its cigar and cigarette business. That on April 5, 1887, the kingdom of Spain as the sovereign authority in the Philippine Islands issued to it, under laws then in force, a certificate of registration and ownership of certain trade-marks and trade-names and label designs therein described and enumerated, including the trade-name "La Flor de la *Isabela," conferring the right upon the complainant to all the benefits appurtenant thereto, including the right to prosecute for infringement. That the trade-name has been in continuous use solely by the complainant from the issuance of the Spanish certificate of registration and ownership to the time of bringing suit, except for the acts of the appellee. That by reason of the long-continued The contention is that the provisions of use of the phrase "La Flor de la Isabela" this treaty were involved in the decision of to designate its factory and its products the Supreme Court thereby authorizing this the said phrase and sundry abbreviations thereof, when applied to the manufactures of tobacco as a distinguishing brand or name, had come to have a secondary meaning designating and denoting that they are the products of its factory. In common parlance the name "La Flor de la Isabela" is abbreviated to "Isabelas" when applied to cigars or cigarettes. That on or about the 1st of June, 1914, the defendant, now appellee, a corporation organized under the laws of the Philippine Islands, engaged in the manufacture and sale of cigars and cigarettes in Manila and elsewhere in the Philippine Islands, unlawfully misappropriated to its own use and benefit the word "Isabelas" in its secondary meaning as a distinguishing brand or name of its tobacco products. That the unlawful use of the name "Isabelas" as the distinguishing brand or name of the products of the defendant is calculated to de ceive the public into the belief that the goods of the defendant so designated and branded are the goods manufactured by the complainant, and that the use thereof by the defendant will cause it irreparable injury. An injunction was prayed against the defendant, and an accounting sought.

The Court of First Instance found in favor of the complainant because of its exclusive ownership of the Spanish trade-mark, and in favor of the defendant on the question of unfair competition. Upon appeal to the Supreme Court of the Philippine Islands, 39 SUP.CT.-15

This appeal was perfected before the Act of September 6, 1916, 39 Stat. 726, c. 448, and is controlled by section 248 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1158), which provided that this court should have jurisdiction to review, revise, reverse, modify or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes, and proceedings in which the Constitution, or any statute, treaty, title, right, or privilege of the United States is involved.


By the treaty of Paris of 1898 (30 Stat. 1758) Spain ceded to the United States the archipelago known as the Philippine Islands. In article 8 of the treaty it is provided that the relinquishment or cession, as the case may be, "*** cannot in any respect impair the property rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be." Article 13 provides that "the rights of property secured by copyrights and patents ac*quired by Spaniards in the Island of Cuba, and in Porto Rico, the Philippines and other ceded territories at the time of the exchange of the ratifications of this treaty, shall continue to be respected." Treaties in Force, 1904, pp. 722, 725, 726.

It is the evident purpose of these provisions in view of the cession of territory made by Spain to the United States, to preserve private rights of property, and to provide that the change of sovereignty should work no impairment of such rights.

The Philippine Act of 1902, carried into the section of the Judicial Code which we have quoted, intended to give this court jurisdiction in cases involving rights secured


Certainly the treaty, in providing that property rights of this class should be respected, did not intend to prevent the consideration by the courts of the nature and extent of the rights granted, or prohibit the application of laws for the enforcement and regulation of such property rights when not in derogation thereof. Philippine Act 666, § 14, Comp. of the Acts of the Philippine Com. § 68, itself provides that certificates issued under the Spanish-sovereignty, unannulled under the royal decree of

by the treaty of 1898 and other treaties of the United States. A good illustration of a case of this character is found in Vilas v. Manila, 220 U. S. 345, 31 Sup. Ct. 416, 55 L. Ed. 491, where certain claims were made against the city of Manila, which it was contended survived, notwithstanding the cession to the United States. A writ of error was sued out to a judgment of the Supreme Court of the Philippine Islands denying relief because of its holding that the municipality of Manila after the treaty was a totally differ-1888, shall be conclusive evidence of the exent corporate entity and in nowise liable for debts created under the Spanish sovereignty. Exception was taken to the jurisdiction, but this court held that the case involved the treaty of 1898, as the question was made to turn in the court below upon the consequence of the change of sovereignty and the reincorporation of the city after the substituted sovereignty. Mr. Justice Lurton, who delivered the opinion of the court, said:

clusive right of ownership of such trademarks or trade-names.

Reliance is had by appellant, to sustain the jurisdiction, on the decision of this court in Ubeda v. Zialcita, 226 U. S. 452, 33 Sup. Ct. 165, 57 L. Ed. 296. There suit was brought upon a trade-mark registered *under the Spanish régime. The record shows that the appeal was allowed upon two grounds: (1) That the amount involved exceeded $25,000; "This disposes of the question of the jurisdic- (2) alleged violation of treaty rights in the tion of this court grounded upon the absence decision that the trade-mark being itself an from the petition of the plaintiffs of any dis-imitation of earlier trade-marks prevented tinct claim under the treaty of Paris, since un- an injunction in favor of its owner. As to der section 10 of the Philippine Organic Act of July 1, 1902, this court is given jurisdiction to review any final decree or judgment of the Supreme Court of the Philippine Islands where any treaty of the United States 'is involved.' That treaty was necessarily involved,' since neither the court below nor this court can deter

mine the continuity of the municipality nor the liability of the city as it now exists for the obligations of the old city, without considering the effect of the change of sovereignty resulting from that treaty. See Reavis v. Fianza, 215 U. S. 16, 22 [30 Sup. Ct. 1, 54 L. Ed. 72].”

In this case no such question is presented. The decision involved no consideration of treaty rights, nor were the same discussed in the judgment in the court below. The Philippine Supreme Court in determining the issues, held that the name "Isabela," which appellees were charged with using, was a geographical and descriptive term and incapable of registration as a trade-mark either under the Philippine Act No. 666 (Pub. Laws 1902-1903), or the law as it existed under the Spanish régime; that the Spanish trade-name as registered consisted of the words "La Flor de la Isabela" and the trademark of a shield with certain devices thereon. That the action was not for the infringement of the trade-name "La Flor de la Isabela," but was for the violation of the trade-name "Isabela." And that unfair competition was not shown.

the treaty claim this court said (226 U. S. 454, 33 Sup. Ct. 166 [57 L. Ed. 296]):

"In such a case [the wrongful appropriation of an earlier mark] the Philippine Act denies the plaintiff's right to recover. Act No. 666, § 9. See section 12, and No. 744, § 4. * It is said that to apply the rule there laid down would be giving a retrospective effect to section 9 as against the alleged Spanish grant of December 16, 1898, to the plaintiff, contrary to the general principles of interpretation and to article 13 of the Treaty of Paris, of April 11, 1899, providing that the rights of property secured by copyrights and patents shall continue to be respected. But the treaty, if applicable, to contravene the cannot be supposed principle of section 9, which only codifies comretrospective in any sense, for it introduces no mon morality and fairness. The section is not

new rule."


Certainly, this was far from holding that a right of appeal existed because a right se cured by the treaty was involved.

The present case was decided upon grounds entirely compatible with continued respect for the trade-mark and trade-name rights granted by the Spanish sovereignty. It results that in the sense of the statute, giving a right to review in this court, no treaty of the United States was involved in the decree which it is sought to reverse. The appeal must be Dismissed.

(249 U. S. 152) er, and dissenting employé has no other remedy MIDDLETON v. TEXAS POWER & LIGHT than withdrawing from the employment. CO.



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plaintiff in error.

There is a strong presumption that a Legis-Mr. Charles B. Braun, of Waco, Tex., for lature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds.

Messrs. Harry P. Lawther and Alexander Pope, both of Dallas, Tex., for defendant in




The equal protection clause of the federal Constitution does not require that state laws shall cover the entire field of proper legislation in a single enactment.



Alleging that in the month of December, 1913, he was in the employ of the Texas Power & Light Company in the *state of Texas, and while so employed received VALIDITY serious personal injuries through the bursting of a steam pipe due to the negligence of his


The burden is on him who attacks a law for employer and its agents, Middleton sued the unconstitutionality.

company in a district court of that state to recover his damages. The defendant interposed an answer in the nature of a plea in abatement setting up that at the time of the accident and at the commencement of the ac

tion defendant was the holder of a policy of liability and compensation insurance, issued in its favor by a company lawfully transacting such business in the state, conditioned to pay the compensation provided by the Texas Workmen's Compensation Act, which was approved April 16, 1913, and took effect on the 1st day of September in that year (chapter 179, Acts of 33d Legislature, [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) of which fact the plaintiff had proper and timely notice as provided by the act; and that no claim for the compensation provided in the act with respect to the alleged injury had been made by plaintiff, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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The Texas Workmen's Compensation Act

(Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) does not deny the equal protection of the laws, in that discrimination results from operation of act as between employés of different employers engaged in the same work, where one employer becomes a subscriber and another does not.


A citizen has no vested right to have rules of law remain unchanged for his benefit.


The Texas Workmen's Compensation Act (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) does not deny the equal protection of laws, because option to become a subscriber rests with employ


The Texas Workmen's Compensation Act (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) does not deprive employé of liberty and property without due process of law, in that he may be required to accept act, if employer does, or withdraw from employment.


In Error to the Court of Civil Appeals for the Third Supreme Judicial District of the State of Texas.

Action by Charlie Middleton against the Texas Power & Light Company. From a judgment of the Court of Civil Appeals of Texas (188 S. W. 276), affirming on rehearing, after answer to certified questions (108 Tex. 96, 185 S. W. 556), a judgment dismissing the action, which judgment had been previously reversed (178 S. W. 956), plaintiff brings error. Affirmed.

Mr. Justice PITNEY delivered the opinion of the Court.



but on the contrary he had refused to receive [suits for damages based on negligence for such compensation, with other matters sufficient to bring defendant within the protection of the act. Plaintiff took a special exception in the nature of a demurrer, upon the ground (among others) that the act was in conflict with the Fourteenth Amendment to the Constitution of the United States. exception was overruled, the plea in abate ment sustained, and the action dismissed. On appeal to the Court of Civil Appeals it was at first held that the judgment must be reversed (178 S. W. 956); but upon an application for a rehearing the constitutional questions were certified to the Supreme Court of the state. That court sustained the constitutionality of the law (108 Tex. 96, 185 S. W. 556); and in obedience to its opinion the Court of Civil Appeals set aside its former judgment and affirmed the judgment of the district court. Thereupon the present writ of error was sued out under section 237, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by Act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214). *Thus we have presented, from the stand-There are administrative provisions, includpoint of an objecting employé, the question ing procedure for the determination of diswhether the Texas Employers' Liability Act puted claims. By section 2 of part 1 (Veris in conflict with the due process and equal non's Sayles' Ann. Civ. St. 1914, art. 5246hh) protection provisions of the Fourteenth it is enacted as follows: Amendment.

injuries to employés or for death resulting therefrom, and are deprived of the so-called "common-law defenses" of fellow servant's negligence and assumed risk, and also of contributory *negligence as an absolute defense, it being provided that for contributory negligence damages shall be diminished except where the employer's violation of a statute enacted for the safety of employés contributes to the injury or death; but that where the injury is caused by the willful intention of the employé to bring it about the employer may defend on that ground. Every employer becoming a subscriber to the insurance association is required to give written or printed notice to all his employés that he has provided for the payment by the association of compensation for injuries received by them in the course of their employment. Under certain conditions an employer holding a liability policy issued by an insurance company lawfully transacting such business within the state is to be deemed a subscriber within the meaning of the act.

The act creates an employers' Insurance association, to which any employer of labor in the state, with exceptions to be mentioned, may become a subscriber; and out of the funds of this association, derived from premiums on policies of liability insurance issued by it to subscribing members and assessments authorized against them if necessary, the compensation provided by the act as due on account of personal injuries sustained by their employés, or on account of death resulting from such injuries, is to be paid. This is a stated compensation, fixed with relation to the employe's average weekly wages, and accrues to him absolutely when he suffers a personal injury in the course of his employment incapacitating him from earning wages for as long a period as one week, or to his representatives or beneficiaries in the event of his death from such injury, whether or not it be due to the negligence of the employer or his servants or agents. Such compensation is the statutory substitute for damages otherwise recoverable because of injuries suffered by an employé, or his death occasioned by such injuries, when due to the negligence of the employer or his servants; it being declared that the employé of a subscribing employer, or his representatives or beneficiaries in case of his death, shall have no cause of action against the employer for damages except where a death is caused by the willful act or omission or gross negligence of the employer. Employers who do not become subscribers are subject as before to

"The provisions of this act shall not apply to actions to recover damages for the personal injuries or for death resulting from personal injuries sustained by domestic servants, farm laborers, nor to the employés of any person, firm or corporation operating any railway as a common carrier, nor to laborers engaged in working for a cotton gin, nor to employés of any person, firm or corporation having in his or their employ not more than five employés."

Following the order adopted in the argument of plaintiff in error, we deal first with the contention that the act amounts to a denial of the equal protection of the laws. This is based in part upon the classification resulting from the provisions of the section just quoted, it being said that employés of the excepted classes are left entitled to certain privileges which by the act are denied to employés of the non-excepted classes, without reasonable basis for the distinction.

[1] Of course plaintiff in error, not being an employé in *any of the excepted classes, would not be heard to assert any grievance they might have by reason of being excluded from the operation of the act. Southern Ry. Co. v. King, 217 U. S. 524, 534, 30 Sup. Ct. 594, 54 L. Ed. 868; Standard Stock Food Co. v. Wright, 225 U. S. 540, 550, 32 Sup. Ct. 784, 56 L. Ed. 1197; Rosenthal v. New York, 226 U. S. 260, 271, 33 Sup. Ct. 27, 57 L. Ed. 212, Ann. Cas. 1914B, 71; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 34 Sup. Ct. 359, 58 L. Ed. 713; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 35 Sup. Ct. 167, 59 L. Ed. 364. But plaintiff in error sets up a griev


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