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We think that the railroad company has decisions of this court on the subject, nor to fully performed its duty towards the town assume that the interstate transportation, in the way of furnishing it proper and either of passengers or freight, is to be readequate and reasonable accommodation, garded as overshadowing the rights of the without stopping these interstate trains as residents of the state through which the ordered, and, therefore, the order of the railroad passes to adequate railroad facilicommission was improper and illegal, and ties. Both claims are to be considered, and not merely an incidental interference with after the wants of the residents within a the interstate commerce of the company. state or locality through which the road The circuit court of appeals has, in effect, so passes have been adequately supplied, reheld, although it did say that the commis- gard being had to all the facts bearing upon sion and the circuit court had made an order the subject, they ought not to be permitted that indicated that the trains which already to demand more, at the cost of the ability stopped at Magnolia were not sufficient, and of the road to successfully compete with that the town should have five daily trains its rivals in the transportation of interstate going south, and therefore the court said it passengers and freight. thought it well to examine other questions, We are of opinion that the judgment of which it did. A reading of the whole opin- the Circuit Court of Appeals was right, and ion of the circuit court of appeals shows it is affirmed. that the court did not concede, in any degree, that the passenger facilities afforded were inadequate, but that the remedy was to compel the company to run more trains, E. L. ALLEN, and Wallace B. Allen, Adminand not stop the ones in question. The istrator of the Estate of Erasmus W. Al. opinion simply suggests that even if the len, Deceased, Plffs. in Err., facilities were inadequate, the appropriate course was to order more trains instead of

FRANCES J. RILEY. stopping those mentioned. In any event, the question is before us upon uncontradicted Patents-state regulation of sale. evidence as to whether there were or were The regulation of the sale of patent not proper facilities, and we hold there were. rights made by Kan. Laws 1889, chap. 182,

The order cannot be viewed alone in the which compels one selling a patent right in light of ordering a stop at one place only, any county in the state to file with the clerk which might require not more than three letters patent, together with an affidavit of

of such county an authenticated copy of the minutes, as asserted. It is the question the genuineness of the letters patent and as whether these trains can be stopped at all to other matters, and provides that any at any particular station when proper and written obligation given for the purchase adequate facilities are otherwise afforded price of a patent right shall contain the such station. If the commission can order words “given for a patent right,”—does not such a train to be stopped at a particular violate U. S. Const. art. 1, § 8, granting to locality under such circumstances, then it Congress the right to secure to inventors the could do so as to other localities, and in S. Rev. Stat. 4898, U. S. Comp. Stat. 1901,

exclusive right to their discovery, nor U. that way the usefulness of a through train p. 3387, authorizing written assignments of

. would be ruined and the train turned from patents or interests therein, which shall be a through to a local one in Mississippi. The void as against subsequent purchasers unlegislature of a state could not itself make less recorded in the Patent Office. * such an order, and it cannot delegate the power to a commission to do so, in its dis

[No. 99.] cretion, when adequate facilities are otherwise furnished.

Submitted November 5, 6, 1906. Decided The transportation of passengers on inter

December 3, 1906. state trains as rapidly as can with safety be done is the inexorable demand of the INSERROR to the Supreme Court of the

. tween great trunk lines is fierce and at times which affirmed a judgment of the District bitter. Each line must do its best even to Court of Brown County, in that state, for obtain its fair share of the transportation the recovery of the value of real property between states, both of passengers and transferred in part payment for the sale of freight. A wholly unnecessary, even though a patent right, because of the failure of the a small, obstacle, ought not, in fairness, to vendors to comply with the state legislabe placed in the way of an interstate road, tion governing the sale of patent rights. which may thus be unable to meet the Affirmed. competition of its rivals. We by, no means See same case below, 71 Kan. 378, 80 Pac. intend to impair the strength of the previous '952.

*Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $$ 350, 351.

Statement by Mr. Justice Peckham: supreme court of the state of Kansas is

Frances J. Riley, the defendant in error, reported in 71 Kan. 378, 80 Pac. 952. who was plaintiff below, recovered a judg- The judgment herein is founded upon Mament against plaintiffs in error, defendants son v. McLeod, 57 Kan. 105, 41 L.R.A. 548, below, for $1,250, in the district court of 57 Am. St. Rep. 327, 45 Pac. 76; which case Brown county, in the state of Kansas, which has been followed by that of Pinney v. judgment was affirmed by the supreme court First Nat. Bank, 68 Kan. 223, 75 Pac. 119. of the state, and the defendants below lave The defendants insist that the act in brought the case here by writ of error. question violates article 1, § 8, of the Con

The suit was commenced by the filing of stitution of the United States, and the Fada petition by defendant in error, plaintiff eral statute passed in pursuan thereof, below, in a district court of Kansas, March being Rev. Stat. § 4898, U. S. Comp. Stat. 17, 1902, to recover the value of certain 1901, p. 3387. The Constitution grants to lands alleged to have been transferred by Congress the right "to promote the progthe plaintiff to the defendant Erasmus W. ress of science and useful arts by securing, Allen, in part payment for the transfer to for limited times, to authors and inventors, plaintiff of rights for the state of Kentucky the exclusive right to their respective writunder a patent dated January 30, 1901, for ings and discoveries;" and § 4898 of the Rea washing machine. The right to recover is vised Statutes provides that every patent based upon the failure of the defendants to or interest therein shall be assignable in comply with the Kansas statute, which fail- law by an instrument in writing, which asure defendants do not deny, but they insist signment is made void against any subsethat the statute is void as being in viola- quent purchaser or mortgagee, for a valution of the Constitution of the United States able consideration, without notice, unless it and the act of Congress referred to in the is recorded in the Patent Office within three opinion. The Kansas statute is chapter months from the date thereof. 182 of the Laws of 1889. A copy of the act It is asserted by the plaintiffs in error is set out in the margin.t

that the subject of the sale or assignment

of the whole or any part of an interest in a Messrs. N. H. Loomis, R. W. Blair, and patent is derived from the laws of Congress H. A. Scandrett for plaintiffs in error. passed with reference to the constitutional

Messrs. A. E. Crane and T. T. Woodburn provision quoted above, and that any regufor defendant in error.

lations whatever, by any state authority,

in regard to such assignment or sale, and Mr. Justice Peckham, after making the making provision in respect to them, are ilforegoing statement, delivered the opinion legal. of the court:

The supreme court of Kansas has mainThe sole question for our determination tained and upheld the Kansas act on the in this case is concerning the constitution ground that the statute is simply a reasonality of the Kansas act. The opinion of the able and proper exercise of the police power

* Chapter 182, Laws of 1889 (paragraphs obligation in writing for which any patent 4356, 4357, and 4358, General Statutes of right, or right claimed by him or her to be Kansas, 1901), reads as follows:

a patent right, shall form a whole or any “Sec. 1. It shall be unlawful for any per- part of the consideration, shall, before it is son to sell or barter, or offer to sell or bar- signed by the maker or makers, insert in the ter, any patent right, or any right which body of said written obligation, above the such person shall allege to be a patent signature of said maker or makers, in legible right, in any county within this state, with writing or print, the words, 'Given for a patout first filing with the clerk of the district ent right.' court of such county copies of the letters “Sec. 3. Any person who shall sell or barpatent, duly authenticated, and at the same ter, or offer to sell or barter, within this time swearing or affirming to an affidavit state, or shall take any obligation or prombefore such clerk that such letters patent ise in writing for a patent right, or for what are genuine, and have not been revoked or he may call a patent right, without complyannulled, and that he has full authority to ing with the requirements of this act, or sell or barter the right so patented; which shall refuse to exhibit the certificate whọn affidavit shall also set forth his name, age, demanded, shall be deemed guilty of a misoccupation, and residence; and if an agent, demeanor, and on conviction thereof before the name, occupation, and residence of his any court of competent jurisdiction shall be principal. A copy of this affidavit shall be fined in any sum not exceeding $1,000, or be filed in the office of said clerk, and said clerk imprisoned in the jail of the proper county shall give a copy of said affidavit to the ap- not more than six months, at the discretion plicant, who shall exhibit the same to any of the court or jury trying the same, and person on demand.

shall be liable to the party injured in a civil "Sec. 2. Any person who may take any action for any uamages sustained.

of the state in regard to the subject of the , 361; State v. Lockwood, 43 Wis. 405, and act. Mason v. McLeod, supra. That court soms others. . was of opinion that the provisions of the The circuit court of appeals of the eighth Kansas statute did not trench upon the circuit, in Ozan Lumber Co. v. Union County Federal power nor interfere with the rights Nat. Bank, 145 Fed. 344, has held a statute secured to patentees by Federal law. The of Arkansas upon this same subject void opinion does not assert that a state stat, because of its discrimination between artiute can interfere with the right of a cles of property of the same class or charpatentee to sell or assign his patent, nor acter, based only on the fact that the propthat it can take away any essential fea- erty discriminated against was protected by ture of his exclusive right, but, as is stated, a patent granted by the United States. In the provisions in the act have no such pur- the opinion in the case, authorities upon pose or effect; that "they are in the nature the subject are cited and commented upon. of police regulations designed for the protec- Among the cases cited are Patterson v. tion of the people against imposition and Kentucky, 97 U. S. 501, 24 L. ed. 1115, and fraud. There is great opportunity for im- Webber v. Virginia, 103 U. S. 344, 26 L. ed. position and fraud in the transfer of in- 565. tangible property, such as exists in a patent In Patterson v. Kentucky, supra, the ownright, and many states have prescribed regu- er of a patent right for an improved burnlations for the transfer of such property ing oil was convicted of the violation of a differing essentially from those which con- Kentucky statute by the sale of the oil covtrol the transfer of other property.” Many ered by the patent. The owner claimed the authorities are cited, and the opinion then right to sell such oil notwithstanding the continues: “The doctrine of these cases is statute, which provided a standard below that the patent laws do not prevent the which oil was regarded as dangerous for ilstate from enacting police regulations for luminating purposes, and the sale of which the protection and security of its citizens, was prohibited. It was admitted the patand that regulations like ours, which are ented oil did not come up to the state standmainly designed to protect the people from ard. This court held the conviction was imposition by those who have actually no right, and that the owner of the patent was authority to sell patent rights or own pat- not protected, by reason of his ownership, ent rights to sell, should be upheld. We from liability under the state statute. That think the statute is valid.”

statute was held to be one passed in the In Indiana a statute which is like that legitimate exercise of the powers of the in Kansas has been upheld by the supreme state over its purely domestic affairs, and court of that state. Brechbill v. Randall, it was said that it did not violate either the 102 Ind. 528, 52 Am. Rep. 695, 1 N. E. 362. Constitution or laws of the United States, That case has, since that time, been fol. as, when property protected by patent once lowed in Indiana. New v. Walker, 108 Ind. comes into existence, its use is subject to the 365, 58 Am. Rep. 40, 9 N. E. 386. In Ohio a control of the several states to the same exstatute somewhat similar to the one in ques- {tent as any other species of property. tion has been upheld. Tod v. Wick Bros. 36 Webber v. Virginia, supra, relates also to Ohio St. 370. And the same result has been tangible property covered by a patent, and reached in Pennsylvania. Haskell v. Jones, it was held that the patent did not exclude 86 Pa. 173. In Herdic v. Roessler, 109 N. Y. from the operation of the taxing or licen127, 16 N. E. 198, the validity of the same sing law of the state the tangible property kind of a statute has been upheld. See also manufactured under a patent. It was said Wyatt v. Wallace, 67 Ark. 575, 55 S. w. in that case that "Congress never intended 1105; State v. Cook, 107 Tenn. 499, 62 L.R.A. that the patent laws should displace the 174, 64 S. W. 720. The statutes in the dif- police powers of the states, meaning by that ferent states are not all precisely like the term those powers by which the health, good Kansas law, but they make provisions in re-order, peace, and general welfare of the gard to the sale or assignment of rights un-community are promoted. Whatever rights der a patent, and sometimes in regard to are secured to the inventors must be enjoyed notes given for their purchase, which cannot in subordination to this general authority of be upheld under the contention of plaintiffs the state over all property within its lim. in error herein, that all such provisions are its." in violation of, or inconsistent with, the laws While these two cases do not cover the of Congress on the subject. The courts of one now before us, because they refer to some other states, having like questions be- tangible property which has been manufacfore them, have held their statutes void. tured and come into existence under a patHollida v. Hunt, 70 Ill. 109, 22 Am. Rep. 63;ent, and the case before us relates to proCranson v. Smith, 37 Mich. 309, 26 Am. Rep. visions which are to accompany an assign514; Wilch v. Phelps, 14 Neb. 134, 15 N. W. 'ment of intangible rights, growing out of a patent, yet the general power of the states, There is no discrimination which can be to legislate in order to protect their citizens properly so called against property in patin their lives and property from fraud and ent rights, exercised in such legislation. It deceit is recognized, not as being without is simply an attempt to protect the citizen limit, of course, but as being properly ex'er- against frauds and impositions which can cised in the cases named.

27 S. C.-7.

be more readily perpetrated in such cases We think the state has the power (cer-than in cases of the sale or assignment of tainly until Congress legislates upon the ordinary property. subject) with regard to th: provision which The act must be a reasonable and fair shall accompany the sale or assignment of exercise of the power of the state for the rights arising under a patent, to make rea- purpose of checking a well-known vil, and sonable regulations concerning the subject, to prevent, so far as possible, fraud and imcalculated to protect its citizens from fraud. position in regard to the sales of rights unAnd we think Congress has not so legislated der patents. Possibly Congress might enact by tha provisions regarding an assignment a statute which would take away from the contained in the act referred to.

states any power to legislate upon the subIn some of the cases holding such statutes ject, but it has not as yet done so. It has void it is said that it is unfortunately true simply provided that every patent, or inthat many frauds are committed under col- terest therein, shall be assignable in writor of patent rights, and that the patent ing, leaving to the various states the power laws are not so framed as to secure the to provide for the safeguarding of the inpublic from being cheated by worthless interests of those dealing with the assumed ventions; but, notwithstanding that, they owner of a patent, or his assignee. To deal hold statutes of the nature of the one un- with that subject has been the purpose of der consideration to be void, as trenching the acts passed by the various states, among upon the rights of the owner of a patent them that of the state of Kansas, and we secured by the Constitution and laws of the think that it was within tha powers of the United States.

state to enact such statute. The expense To uphold this kind of a statute is by no of filing copies of the patent and the making means to authorize any stata to impose of affidavits in the various counties of the terms which, possibly, in the language of state in which the owner of the rights deMr. Justice Davis, in Ex parte Robinson, sired to deal with them is not so great, in 2 Biss. 309, Fed. Cas. No. 11,932, “would our judgment, as to be regarded as oppresresult in a prohibition of the sale of this sive or unreasonable, and we fail to find any species of property within its borders, and other part of the act which may be so rein this way nullify the laws of Congress garded. Some fair latitude must be allowed which regulate its transfer, and destroy the the states in the exercise of their powers power conferred upon Congress by the Con- on this subject. It will not do to tie them stitution.” Such a statute would not be a up so carefully that they cannot move, unreasonable exercise of the powers of the less the idea is that the states have posistate.

tively no power whatever on the subject. In Michigan, the court, speaking through This we do not believe; at any rate, in the Mr. Justice Campbell, while holding the act absence of congressional legislation. The under review in that case upon the subject mere provision in the Federal statute for an invalid (Cranson v. Smith, 37 Mich. 309, 26 assignment and its record as against subseAm. Rep. 514), said: "While we cannot but quent purchasers, etc., is not such legislarecognize the magnitude of an evil which tion as takes away the rights of the states has brought patents into popular discredit, to legislate on the subject themselves in a and has provoked legislation in several manner neither inconsistent with, nor opstates similar to that of Michigan, we can- posed to, the Federal statute. We think the not, on the other hand, fail to see in these judgment is right, and it is affirmed. laws a plain and clear purpose to check the evil by hindering parties owning patents Mr. Justice White, with whom concurs from dealing with them as they may deal Mr. Justice Day, dissenting: with their other possessions.” If there is a My brother Day and myself dissent. special evil, unusually frequent and easily The reasons, however, which impel him are perpetrated when parties are dealing in the broader than those influencing me. In gensale of rights existing or claimed to exist eral terms, the Kansas statute which the under a patent, we do not see why a state court now upholds compels one selling a may not, in the bona fide exercise of its patent right in any county of the state of powers, enact some special statutory provi- Kansas to file with the clerk of such county sion which may tend to arrest such evil, and an authenticated copy of the patent, tomay omit to enact the same provision con- gether with an affidavit as to the genuinecerning the disposal of other property. Iness of the patent, and as to other matters.

V.

The statute, moreover, exacts that where al Messrs. John Fletcher and W. C. Ratcliffe note is given for the purchase price of a ( for defendant in error. patent right, there shall be inserted in the note a statement that it is given for a pat- Mr. Justice Peckham delivered the opinent right, presumably to deprive the note ion of the court: of the attributes of commercial paper. We This action was brought in the proper both think that the requirements as to re-court of the state of Arkansas by the plaincording the patent and affidavit are void, tiffs in error to recover the amount of a because repugnant to the power delegated to promissory note which was given by the deCongress by the Constitution on the subject fendant in error on the sale to him of a the fendanta in error on the sale to him

of a of patents, and because in conflict with the patented machine and of the right to the legislation of Congress on the same subject. patent in the state of Arkansas. Before the And, for like reasons, my brother Day is al- maturity of the note it was indorsed by the so of the opinion that the provision is payee and transferred to plaintiffs in error. void which exacts an insertion in a note The note was not executed as provided for given for the sale of a patent right of the by the statute of that state relating to the fact that it was given for such sale. This sale of rights under a patent. Act of April latter provision, in my opinion, the state 23, 1891, Kirby's Dig. § 513. The section had the power to make as a reasonable police reads as follows: regulation, not repugnant to the authority

“Sec. 513. Any vendor of any patented as to patents delegated to Congress by the Constitution, or the legislation which con- machine, implement, substance, or instru

ment of any kind or character whatsoever, gress has enacted in furtherance thereof.

when the said vendor of the same effects the sale of the same to any citizen of this state

on a credit, and takes any character of neJOHN WOODS & SONS, Piffs. in Err., gotiable instrument in payment of the same,

the said negotiable instrument shall be exeFRANK CARL.

cuted on a printed form, and show upon its

face that it was executed in consideration Patents—state regulation of sale. The requirement that a negotiable in

of a patented machine, implement, substrument taken on a sale of rights under a stance, or instrument, as the case may be, patent shall show on its face for what it and no person shall be considered an innowas given, or be void, which is made by cent holder of the same, though he may have Kirby's (Ark.) Dig. § 513, does not violate given value for the same before maturity, U. S. Const. art. 1, § 8, granting to Con- and the maker thereof may make defense gress the right to secure to inventors the to the collection of the same in the hands exclusive right to their discovery, nor U. of any holder of said negotiable instrument, S. Rev. Stat. § 4898, U. S. Comp. Stat. 1901, and all such notes not showing on their face p. 3387, authorizing written assignments of patents or interests therein, which shall be for what they were given shall be absolutevoid as against subsequent purchasers un

ly void.” less recorded in the Patent Office. *

The defendant set up the violation of the

statute as a defense. The verdict was for [No. 102.]

the defendant, and the judgment entered

thereon having been affirmed by the suprema Submitted November 1, 1906. Decided De-court, the plaintiffs have brought the case

cember 3, 1906.
,

here by writ of error. N ERROR to the Supreme Court of the The sole question involved is the validity

State of Arkansas to review a judgment of the statute. The opinion of the supreme which affirmed a judgment of the Circuit court of Arkansas is reported in 75 Ark. 328, Court of Pulaski County, in that state, in 87 S. W. 621. See also Wyatt v. Wallace, favor of defendant in an action on a promi- 67 Ark. 575, 55 S. W. 1105; State v. Cook, issory note given for the sale of a patent 107 Tenn. 499, 62 L.R.A. 174, 64 S. W. 720. right, which was not executed as required This case is governed by the immediately by the statutes of that state governing the preceding one, although the statute of Arsale of patent rights. Affirmed.

kansas renders the note void if given for a See same case below, 75 Ark. 328, 87 S. patent right if the note does not show on W.621.

its face for what it was given. The differThe facts are stated in the opinion. ence is not so material as to call for a dif

Messrs. Charles F. Wilson, Homer C. ferent decision. The judgment is affirmed. Mechem, and Edward Mechem for plaintiffs in error.

Mr. Justice Day dissents. *Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $$ 350, 351.

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