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, which it did. A reading of the whole opinion 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, and not stop the ones in question. The opinion simply suggests that even if the facilities were inadequate, the appropriate course was to order more trains instead of stopping those mentioned. In any event, the question is before us upon uncontradicted evidence as to whether there were or were

not proper facilities, and we hold there were. The order cannot be viewed alone in the light of ordering a stop at one place only, which might require not more than three minutes, as asserted. It is the question whether these trains can be stopped at all at any particular station when proper and adequate facilities are otherwise afforded such station. If the commission can order such a train to be stopped at a particular locality under such circumstances, then it could do so as to other localities, and in that way the usefulness of a through train would be ruined and the train turned from a through to a local one in Mississippi. The legislature of a state could not itself make such an order, and it cannot delegate the power to a commission to do so, in its discretion, when adequate facilities are otherwise furnished.

The transportation of passengers on interstate trains as rapidly as can with safety be done is the inexorable demand of the public who use such trains. Competition between great trunk lines is fierce and at times bitter. Each line must do its best even to obtain its fair share of the transportation between states, both of passengers and freight. A wholly unnecessary, even though a small, obstacle, ought not, in fairness, to be placed in the way of an interstate road, which may thus be unable to meet the competition of its rivals. We by, no means intend to impair the strength of the previous

We are of opinion that the judgment of the Circuit Court of Appeals was right, and

E. L. ALLEN, and Wallace B. Allen, Administrator of the Estate of Erasmus W. Allen, Deceased, Plffs. in Err.,

V.

FRANCES J. RILEY.

Patents-state regulation of sale.

The regulation of the sale of patent rights made by Kan. Laws 1889, chap. 182, which compels one selling a patent right in any county in the state to file with the clerk of such county an authenticated copy of the letters patent, together with an affidavit of the genuineness of the letters patent and as to other matters, and provides that any written obligation given for the purchase price of a patent right shall contain the words "given for a patent right,"-does not violate U. S. Const. art. 1, § 8, granting to Congress the right to secure to inventors the S. Rev. Stat. § 4898, U. S. Comp. Stat. 1901, exclusive right to their discovery, nor U. p. 3387, authorizing written assignments of patents or interests therein, which shall be void as against subsequent purchasers unless recorded in the Patent Office. *

[No. 99.]

Submitted November 5, 6, 1906. Decided
December 3, 1906.

IN ERROR to the Supreme Court of the

State of Kansas to review a judgment which affirmed a judgment of the District Court of Brown County, in that state, for the recovery of the value of real property transferred in part payment for the sale of a patent right, because of the failure of the vendors to comply with the state legislation governing the sale of patent rights. Affirmed.

See same case below, 71 Kan. 378, 80 Pac. 952.

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

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 some 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 right, and many states have prescribed regu-er of a patent right for an improved burnlations for the transfer of such property differing essentially from those which control the transfer of other property." Many authorities are cited, and the opinion then continues: "The doctrine of these cases is that the patent laws do not prevent the state from enacting police regulations for the protection and security of its citizens, and that regulations like ours, which are mainly designed to protect the people from imposition by those who have actually no authority to sell patent rights or own patent rights to sell, should be upheld. We think the statute is valid."

In Patterson v. Kentucky, supra, the own

ing oil was convicted of the violation of a Kentucky statute by the sale of the oil covered by the patent. The owner claimed the right to sell such oil notwithstanding the statute, which provided a standard below which oil was regarded as dangerous for illuminating purposes, and the sale of which was prohibited. It was admitted the patented oil did not come up to the state standree ard. This court held the conviction was right, and that the owner of the patent was not protected, by reason of his ownership, from liability under the state statute. That statute was held to be one passed in the legitimate exercise of the powers of the state over its purely domestic affairs, and it was said that it did not violate either the Constitution or laws of the United States, as, when property protected by patent once comes into existence, its use is subject to the control of the several states to the same extent as any other species of property.

Webber v. Virginia, supra, relates also to tangible property covered by a patent, and it was held that the patent did not exclude from the operation of the taxing or licensing law of the state the tangible property manufactured under a patent. It was said in that case that "Congress never intended that the patent laws should displace the police powers of the states, meaning by that term those powers by which the health, good

In Indiana a statute which is like that in Kansas has been upheld by the supreme court of that state. Brechbill v. Randall, 102 Ind. 528, 52 Am. Rep. 695, 1 N. E. 362. That case has, since that time, been followed in Indiana. New v. Walker, 108 Ind. 365, 58 Am. Rep. 40, 9 N. E. 386. In Ohio a statute somewhat similar to the one in question has been upheld. Tod v. Wick Bros. 36 Ohio St. 370. And the same result has been reached in Pennsylvania. Haskell v. Jones, 86 Pa. 173. In Herdic v. Roessler, 109 N. Y. 127, 16 N. E. 198, the validity of the same kind of a statute has been upheld. See also Wyatt v. Wallace, 67 Ark. 575, 55 S. W. 1105; State v. Cook, 107 Tenn. 499, 62 L.R.A. 174, 64 S. W. 720. The statutes in the different states are not all precisely like the Kansas law, but they make provisions in re-order, peace, and general welfare of the gard to the sale or assignment of rights under a patent, and sometimes in regard to notes given for their purchase, which cannot be upheld under the contention of plaintiffs in error herein, that all such provisions are in violation of, or inconsistent with, the laws of Congress on the subject. The courts of some other states, having like questions before them, have held their statutes void. Hollida v. Hunt, 70 Ill. 109, 22 Am. Rep. 63; Cranson v. Smith, 37 Mich. 309, 26 Am. Rep. 514; Wilch v. Phelps, 14 Neb. 134, 15 N. W. 27 S. C.-7.

community are promoted. Whatever rights are secured to the inventors must be enjoyed in subordination to this general authority of the state over all property within its limits."

While these two cases do not cover the one now before us, because they refer to tangible property which has been manufactured and come into existence under a patent, and the case before us relates to provisions which are to accompany an assignment 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 in their lives and property from fraud and deceit is recognized, not as being without limit, of course, but as being properly exercised in the cases named.

We think the state has the power (certainly until Congress legislates upon the subject) with regard to the provision which shall accompany the sale or assignment of rights arising under a patent, to make reasonable regulations concerning the subject, calculated to protect its citizens from fraud. And we think Congress has not so legislated by the provisions regarding an assignment contained in the act referred to.

properly so called against property in patent rights, exercised in such legislation. It is simply an attempt to protect the citizen against frauds and impositions which can be more readily perpetrated in such cases than in cases of the sale or assignment of ordinary property.

The act must be a reasonable and fair exercise of the power of the state for the purpose of checking a well-known evil, and to prevent, so far as possible, fraud and imposition in regard to the sales of rights under patents. Possibly Congress might enact a statute which would take away from the states any power to legislate upon the subject, but it has not as yet done so. It has simply provided that every patent, or interest therein, shall be assignable in writ

In some of the cases holding such statutes void it is said that it is unfortunately true that many frauds are committed under color of patent rights, and that the patenting, leaving to the various states the power laws are not so framed as to secure the public from being cheated by worthless inventions; but, notwithstanding that, they hold statutes of the nature of the one under consideration to be void, as trenching upon the rights of the owner of a patent secured by the Constitution and laws of the United States.

To uphold this kind of a statute is by no means to authorize any state to impose terms which, possibly, in the language of Mr. Justice Davis, in Ex parte Robinson, 2 Biss. 309, Fed. Cas. No. 11,932, "would result in a prohibition of the sale, of this species of property within its borders, and in this way nullify the laws of Congress which regulate its transfer, and destroy the power conferred upon Congress by the Constitution." Such a statute would not be a reasonable exercise of the powers of the state.

to provide for the safeguarding of the interests of those dealing with the assumed owner of a patent, or his assignee. To deal with that subject has been the purpose of the acts passed by the various states, among them that of the state of Kansas, and we think that it was within the powers of the state to enact such statute. The expense of filing copies of the patent and the making of affidavits in the various counties of the state in which the owner of the rights desired to deal with them is not so great, in our judgment, as to be regarded as oppressive or unreasonable, and we fail to find any other part of the act which may be so regarded. Some fair latitude must be allowed the states in the exercise of their powers on this subject. It will not do to tie them up so carefully that they cannot move, unless the idea is that the states have positively no power whatever on the subject. This we do not believe; at any rate, in the absence of congressional legislation. The mere provision in the Federal statute for an assignment and its record as against subsequent purchasers, etc., is not such legislation as takes away the rights of the states to legislate on the subject themselves in a manner neither inconsistent with, nor opposed to, the Federal statute. We think the judgment is right, and it is affirmed.

In Michigan, the court, speaking through Mr. Justice Campbell, while holding the act under review in that case upon the subject invalid (Cranson v. Smith, 37 Mich. 309, 26 Am. Rep. 514), said: "While we cannot but recognize the magnitude of an evil which has brought patents into popular discredit, and has provoked legislation in several states similar to that of Michigan, we cannot, on the other hand, fail to see in these laws a plain and clear purpose to check the evil by hindering parties owning patents from dealing with them as they may deal 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.

Mr. Justice White, with whom concurs Mr. Justice Day, dissenting:

The defendant set up the violation of the statute as a defense. The verdict was for the defendant, and the judgment entered thereon having been affirmed by the supreme Submitted November 1, 1906. Decided De- court, the plaintiffs have brought the case

See same case below, 75 Ark. 328, 87 S. patent right if the note does not show on W. 621.

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