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Follett, Hyman & Kelley and Chas. Bulkley Hubbel, corporation which was called the “Société Anouyme de attorneys for plaintiff.
la distillerie de la Benedictine liqueur de l'Abbaye de Geo. J. Murray and Wm. L. Avery, attorneys for
Fécamp," to which he conveyed all the property used defendant.
for the manufacture of this liqueur, together with his
trade-marks, business assets and good will, and reTAFT, J. Plaintiff alleges that it is a French cor
ceived therefor 4,500 shares out of the 5, 000 shares of poration engaged for some years past in manufactur
the company. He became sole director of the coming a liqueur of superior quality, kuown and branded
pany. In 1883, on beball of this company, he regby plaintiffs as “Benedictine," which it sells exten
istered in the patent office at Washington the tradesively and at profit in Europe and America in pecu
marks described in the petition, on which the conliarly-shaped bottles with labels and trade-marks, de
troversy arises at bar. These trade-marks include all scribed in the petition and duly registered in the
that have been described above as registered in the patent office at Washington, and that defendats have
name of A. Le Grand in 1876. Also a label containing put up and sold an article in imitation of plaintiff in
the words: “Liquor Monachorum Benedictorum Abbottles with labels and trade-marks exactly like those
batiae Fiscanensis." Also a label containing the of plaintiff, thereby deceiving the publio and de
following, in French: “Every bottle of the genuine frauding the plaintiffs. An injunction is asked and
Benedictine liqueur bears on the lowest label a fac damages. The answer of defendants raises two issues,
simile of the General Director, A. Legrand, Aine." first, that the trade-marks, labels and advertisements
The broadest leaden ligature surrounding the neck of claimed by defendant were iu use long before defend
the bottle bears the following marks and inscription: ant adopted them, and were registered at the patent
"* Veritable + Benedictine *.” The cork is marked all office several years prior to plaintiffs' registration of
around with *“Veritable Liqueur Benedictine.*" At them; and second, that they contain misrepresenta
| last on the under side of the cork is to be found: tions as to the person manufacturing the liqueur,
“D. O. M." which deceive the publio and so disentitle plaintiffs to relief. Defendants do not deny that they are putting
To increase the sale of the liqueur, advertisements up and selling an article in imitation of the plaintiffs'
of its good qualities accompany each bottle, and plaarticle in bottles with labels, marks and advertise
oards are sent to be hung up in saloous and liquor ments exactly like those described in the petition.
houses. Iu these advertisements the liquuer is spoken An allegation at the close of the answer, which seems
of as the genuine liqueur of the Benedictine Monks to be such a denial when carefully read with the rest
of the Abbey of Fécamp. It is said that the corof the answer, turns out to be only au argument from
dial has not varied since 1510; that the ancient inprevious allegations and no denial of fact at all.
gredients are strictly preserved. Then a general deThe evidence discloses the following state of fact:
scription is given of its ingredients, and then quite At Fécamp in Normandy, France, the Benedictine
an extended account of its good qualities, which, in Monks had a monastery for several centuries before the longer advertisements, is accompanied by certifithe French revolution. They invented a liqueur or
cates of French physicians and by wood cuts of the cordial made from cognao and a decoction of an herb
distillery building, the laboratory, the bottling room, growing wild in that country and other ingredients, and finally, of two rooms in the museum of relios and made it for their own use. They preserved the from the old Abbey of Fécamp. At the bottom recipe as a secret in a book of recipes. In 1792 the
of the advertisement is “General Warehouse, A. Leabbey of Fécamp was destroyed and the monks driven
grand, Aine, at Fécamp.” Later advertisements oonout. A. Legrand, Senior, of Fécamp, one of whose tain the name of the plaintiffs at their head. ancestors was an attorney-general of the abbey, oame
On these facts counsel for defendants ask for a into possession of the book of receipes by inheritance. decree dissolving the temporary injunction and disIn 1863 he began the manufacture of the liqueur in
missing the petition on four grounds: question, on an estate which was formerly part of the
First. That the word “Benedictine" is a generic lands of the abbey, and where now is situated a mu.
term denoting only the kind of liqueur sold, and canseum of relics of the abbey. The recipe of the monks
not be used as a trade-mark. was followed exactly in the manufacture of the liqueur. Second. That the labels, devices and advertisements The recipe is preserved as a secret known only to Le imply and lead the public to suppose that the BeyeGrand, Aine, and two sons in business with him. In dictine Monks now manufaoture the liqueur, and that 1863 the liqueur first became an article of commeroe, a court of equity will not protect the plaintiffs iu pracand then for the first time was it given the name ticing such a fraud upon the publio. “Benedictine." In 1876 Le Grand, Aine, registered Third. That even if A. Le Grand, Aine, might have his trade-marks for this liqueur in the patent office at had a right to protection in equity for these trado Washington.
marks before his assignment of them to the plaintitiu, They were :
the use of them by the plaintiffs without any words First. The letters D. O. M. with a cross above them, denoting successorship or change is equivalent to wisand the letters A. L., Le Directeur, beneath.
representation that Le Grand, Aine, is still engaged in Second. A representation of the Holy St. Benoit, the manufacture, whioh disentitles plaintiffs to equitformer Abbot of Fécamp, in a circle, used as a seal able protection. impress on the cork of the bottle.
Fourth. That even if plaintiffs' right to equitable Third. The coat of arms of the Abbey of Féoamp, protection is otherwise perfect, it is a citizen of the used also as a seal impress on the face of the bottle. Republic of France, and only entitled to enjoy this Fourth. The word “Benedictine.”
protection after taking certain steps prescribed by Fifth. A lead band running round the top of the treaty, which steps have neither been alleged nor bottle and down the side ending beneath the seal of proven at bar. the abbey on the face of the bottle.
I shall consider these objections in their order: Sixth. A fac simile of the signature of A. Le Grand, First. Le Grand, Aine, first applied the name "BeneAine, under the words “ Veritable Liqueur Benedic diotine" to this liqueur. It had never been applied to tine, Brevetée France et a l'Etranger."
a liquor of any kind before. It was a new use of an How long he had been using these trade-marks does old word. There is nothing in the word describing not clearly appear, but it had probably been since he be- the article by its ingredients or qualities. It does regan the manufacture in 1863. In 1876 he organized a fer to the inventors of the article, and that is doubtless its derivation; but that is no objection to its use ments are the two expressions which, it is said, denote as a trade-mark. When Le Grand, Aine, first used that the monks are the present makers. Evidence bas this word, then, as a trade-mark for his liqueur, it was been adduced as to the meaning of the preposition a legal trade-mark. Having once rightly adopted the and article des, from which it appears that as used word as a trade-mark, he cannot now be deprived of here, it has an idiomatic meaning denoting origin, it unless he has himself abandoned it, and there is no i. e., “in accordance with the method of." With such abandonment established by the evidence. By Le a meaning, the words certainly do not contain a misGrand's use of “Benedictine’ as a trade-mark in a suc representation. But I do not think it necessary to cessful and world-wide sale of the article, he has made translate des by a paraphrase. Des ju this convection the trade-mark mean the article; but tbat is no reason means literally “of the.” The literal translation of why he cannot still have an assignable property in the the French would be, “The genuine Benedictine trade-mark. The latest case on this point is Celluloid liqueur of the Benedictine Monks of the Abbey of Munuf. Co. v. Cellonite Manuf. Co., decided by Mr. Fécamp," and of the Latin the same, omitting the Justice Bradley, of the United States Supreme Court, words "genuine Benedictive." The use of the poson the circuit, reported, page 125, vol. 36, of the Albany sessive case, or the preposition "of" in English, may Law Journal. The question there was as to the use of either denote possession or origin. Crockett's leather the word “celluloid” as a trade-mark. The justice says: | cloth may mean cloth manufactured and owned by " The oomplainant's assignors, the Hyatts, coined and Crockett, or it may mean cloth manufactured accord. adopted the word when it was unknown and made it | ing to Crockett's method or invention. It follows their trade-mark, and the complainaut is assignee of that the expressions relied on may have one meaning, all the rights of the Hyatts. When the word was and that an ordinary one in which there is no miscoined and adopted, it was clearly a good trade-mark. representation; for the liquor is made according to The question is whether the subsequent use of it by the mode invented by the Benedictine Monks of the the public, as a common appellation of the substance Abbey of Fécamp, and is made in the very place where manufactured, can take away the complainant's right. they made it, under the same conditions as to climate, It seems to me that it cannot.
soil, water, etc. The rest of the advertisements point “As a common appellative, the public has the right to this as the meaning. The advertisement dwells at to use the word for all purposes of designating the arti length on the ingredients as if to impress the reader cle except one; it cannot use it as a trade-mark, or in with the recipe rather than the maker. The pictures the way a trade-mark is used, by applying it to or given in the advertisements of the distillery, the botstamping it upon the articles; the complainant alone tling room, the laboratory, the packing room are can do this; and any other person doing it will in- . entirely unlike the popular idea of a monastery. fringe the complainant's right."
There is one picture of a room in the distillery deIn this case the word “celluloid" was invented. It scribed as a museum, containing objects of interest never had been used as a word before to mean any | coming from the Abbey of Fécamp, showing that the thing. At bar "Benedictine” was a word in common abbey as a residence for monks must have been given use, but it had never been used before to designate a up. Then on one side of the bottle is a caution that cordial. In that new use the trade-mark property is every bottle of the genuine Benedictine must bear as clear as if it were a new word. Selchow v. Baker, 93 the fac simile of the managing director, and on the N. Y. 59, cited by Justice Bradley, seems to settle this. other side is this fac simile, “ A. Le Grand, Aine." The words in that case were“ sliced animals " applied His initials also appear on another label under the as a trade-mark to a puzzle consisting of card-board words “Le Directeur." On other advertisements the animals so sliced that when taken apart it was a puz general warehouse is said to be that of A. Le Grand, zle to restore them. In deciding that this might be Aine, at Fécamp. It was thought by counsel for deused as a trade-mark, Judge Rapallo said: “Our con fendant to be full of suspicious meaning that Le olusion is that where a manufacturer has invented a new Grand, Aine, designated himself as managing director name,consisting eitber of a new word or a word or words instead of proprietor. I do not think so. Le Grand, in common use, which he has applied for the first time Aine, was manager as well as proprietor. The French to his own manufacture or to an article manufactured word " directeur" and the English word “manager" by him to distinguish it from those manufactured and do not suggest the head of a monastery, but the head sold by others, and the name thus adopted is not of a business house. If a monk or any other person generic or descriptive of the article, its qualities, in desired to advertise his liquor as of monkish make, he gredients or characteristics, but is arbitrary or fanci would hardly use as a trade-mark and advertisement ful, and is not used merely to denote grade or quality, the fac simile A. Le Grand, Aine, Directeur, which is he is entitled to be protected in the use of that name, not a monkish name, and does not indicate the notwithstanding it has become so generally known celibacy of its author. that it has been adopted by the public as the ordinary From what has been said therefore I do not think appellation of the article."
that either the advertisements or the trade-marks So that a new word, and an old word in a new sense, give the impression that the liqueur is made by the are equally available as trade-marks.
monks. It is in evidence that some people have The first objection of defendants' counsel cannot be thought so, but there was very little to show that they maintained.
got this impression from the words of tbe advertiseSecond. He who comes seeking the protection of a ments or labels. The fact that it is generally known court of equity, must come with clean hands. If he that Chartreuse is made by the Carthusian Monks has made a trade-mark valuable to himself by fraud, would explain an impression that the liqueur known equity will not help him to preserve it. It is claimed by another moukish name was manufactured by at bar that the devices, trade-marks and advertise- monks. There is nothing at bar to make Le Grand, ments used by Le Grand, Aine, were intended to and Aine, responsible for such impressiou if it exists. did lead the public to think that the Benedictine Counsel have cited a decision of Commissioner of Monks were the manufacturers of the liqueur made Patents Hall, reported in 40 Official Gazette, 443, Ex and sold by him. The Latin words“ Liquor Mona- | parle M. Block & Co., in which registration was rechorum Benedictorum Abbatiæ Fiscanensis,” which i fused for the trade-mark upon whisky of “K. of L." appear on his bottles, and the French words, “Verit- and “Knights of Labor Distillery," on the ground able Benedictine Liqueur des Moines Benedictins de l that it was fraudulently used by the manufacturer to L'Abbaye de Fécamp,” which appear ou the advertise- give the impression that it was either made by the Kuights of Labor or had its origin with them, and so To hold that the assignee cannot use a trade-mark attract the custom of sympathizers with that order. I of his assignor without qualifying its use by an acwhen in fact the Knights of Labor had nothing to do companying statement of a change of ownership is to with the whisky at all. That case is very different hold that the trade-mark iu question is not strictly from the one at bar, for it does not appear that the assignable, for used with such a statement, the tradename Benedictine will attract the sympathy of any mark is not the trade-mark of the assignor. class of purchasers, or that it was intended to do so, It would seem to follow from the opinions referred and further, it does appear that the Benedictines to that the questiou as to whether a qualifying statehad sufficient to do with originating the liqueur to ment must accompany an assigned trade-mark is to be justify the use of their name as a trade-mark.
determined by what its association with the article Third. The third objection to plaintiff's right is has come to indicate. At bar the various trade-marks founded on the same principle of law as the second. in which there is no distinct assertion as to personal It is claimed that the use by the plaiutiff's of the trade- | manufacture or ownership, have come by association mark of A. Le Grand, without an indication that it to mean to the public that the liqueur in connection has changed ownership, is a representation to the pub with which they appear is made at a distillery at lic that A. Le Grand is still manufacturing the liqueur, Fécamp, in France, of certain herbs of Normandy and is therefore a falsehood. It is true that in the and cognac, and other ingredients, according to an incase of Manhattan Medicine Co. v. Wood, 108 U. S. 218, variable recipe of the Benedictine Monks. It would and in Siegert v. Abbott, 61 Md. 276, the general follow that the plaintiff, to whom was assigned the rule is laid down that where a trade-mark is assigned distillery and the recipe with the trade-marks, might and used by the assignee, the latter, in order to avoid use the latter to designate the same liqueur produced misrepresentation, should indicate that the present as indicated without saying to the world what to it is owner enjoys by assigument from the original pro. | wholly immaterial, that the ownership of the tradeprietor.
marks, distillery and recipes bad changed. In those two cases the trade-marks and labels used But if I am mistaken either in maintaining an exby the complainants contained distinct assertions that ception to the general rule expressed by Justice Field the article was manufactured by a certain person and in the Manhattan Co. v. Wood, or in applying that exat a certain place, both of which by the assignment to ceptiou to the facts at bar, because the name A. Le the complainaut had become false. Such too were Grand, Aine, and Le Directeur, with A. L. uuder it, the facts in the Leather Cloth Manuf. Co. y. The should be construed to be a distinct assertion as to American Cloth Manuf. Co., 11 H. L. C. 533, relied on the person manufacturing the liqueur, I am still of the by defendant.
opinion that the third objection is unfounded. If I There is another class of trade-marks where the am mistaken in either respect, then the trade-marks trade-mark contains no express statement as to who at bar indicate, either by associa
at bar indicate, either by association or in meaning, the the manufacturer or seller of the article is, but where person engaged in the manufacture of the liqueur. the association of the article with the trade-mark That was, before the assignment, Le Grand, Aine. comes to indicate that the manufacturer or seller is The evidence shows that he is still engaged in the always the same. Where this is the indication by the manufacture as sole director of the plaintiffs and the association, then use by an assiguee without qualifi- | owner of 4,500 shares of its total
owner of 4,500 shares of its total capital of 5,000 shares. cation is just as much of a misrepresentation as if the The representatiou to the public as to the manufacture indication had been express. The general rule would of the article is material only as it conveys to the pubcertainly apply to this class of cases. Such was the lic the information that the sk
lio the information that the skill or care, or superincase iu Sherwood v. Andrews, 5 Am. Law Reg. 588. tendence of the same man is used in making it. The
But in trade-marks containing no distinct assertion public is not concerned whether he makes it as sole as to who the maker or seller is, association with the proprietor, as the member of a firm or the manager of article sometimes comes to represent not the seller or a company. As either he is the manufacturer. Until manufacturer, but the place or process or quality of he dies therefore or severs his connection with the manufacture. This class may include cases where company, a distinct assertion in the trade-mark, or an the name of the original manufacturer is the mark. | implication by association, that he is the manufacIn such a case, so long as the place or process or turer of the liqueur, is not a misrepresentation. quality of manufacture remains the same, the repre
The correctness of this view is fully established by sentation which the association between the article | the two cases of The Dixon Crucible Co. v. Guggenand the trade-mark makes to the public is true, no heim, 2 Brewst. 321, and in Meriden Britannici Co. v. matter who is the owner. Here the reason for the Parker, 39 Conu. 450. In the first of these cases the rule laid down in the cases cited ceases, and so should trade-mark contained the words “Jos. Dixon & Comits application. The distinction which I am trying to pany,” which was the name of the firm originating the make is brought out in the opinions of Lord Justice trade-mark. The firm became the corporation. The Turner and Lord Cranworth in the case of Bury v. Joseph Dixon Company and the trade-mark passed Bedford, 4 De Gex, Smith & Jones, 369, and 11 H. L. by assignment. It was held that the use of “ Joseph C. 533, and is alluded to in the opinions of Lord West- Dixon & Co.” on the trade-mark was not a material bury in the cases of Leather Cloth Co. v. American misrepresentation by the corporation sufficient to disLeather Co., 4 De Gex, Jones & Smith, 143, and Hall entitle it to relief in equity. In the Connecticut case v. Barrows, id. The question in these cases was as to the proprietor of the manufactory was the Meriden the assignability of trade-marks. No reference what- Britannia Company, the complainant. It manufacever is made in them to the necessity for a qualifying tured silver-plated uteusils, and used in the tradestatement by the assignee of a trade-mark in its use, mark stamped upon the goods the words “Manufacand it might seem therefore at first that the opin- | tured by the Rogers Bros." There were in the emions referred to have no bearing upon the question I ploy of the company as superintendents of silveram discussing. But a closer examination will show plating three Rogers brothers who had been in that what is meant when it is said by those eminent! business for themselves, had used such a trade-mark Euglish judges that a trade-mark is assignable, is that and had sold it to the company. It was held that as it is so assignable as that it can be used by the as. | the trade-mark assured to the publio the skill of the signee exactly as the assiguor used it, i. e., without a | Rogers Bros. in the make of the articles so stamped, qualifying statement.
aud, as it appeared that such skill was in their make,
the use of the trade-mark by the company was not a CONSTITUTIONAL LAW – PROHIBITORY material misrepresentation. The facts at bar are more
LIQUOR LAW-COMMERCE. clearly within the rule than in the cases cited. The third objection to plaintiff's right must be over
IOWA SUPREME COURT, SEPT. 10, 1887. ruled. Fourth. The fourth and last objection of defend
PEARSON V. INTERNATIONAL DISTILLERY.* ant's counsel to plaintiff's right to protection at bar is that being a French alien, it has not taken a step | The Iowa statute prohibiting the manufacture or sale of inwhich is a condition precedent by treaty with France toxicating liquors, even for exportation, unless manufacto its asserting any right in its trade-mark.
tured within the State for mechanical, medicinal, culiPlaintiff has proven registration of its trade-mark nary or sacramental purposes, and prohibiting also the in the patent office at Washington by the certificate of sale of imported foreign intoxicating liquor, unless in its the commissioner of patents, in which it is stated
original packages and quantities, is constitutional. that it deposited fac similes of the marks in the office,
ACTION to declare a distillery a nuisance, and to and complied with the other regulations of the act of
A enjoin the manufacture, the selling, and keeping Congress of 1881 on trade-marks. By that act per
for sale therein, of all intoxicating liquors. Plaintiff sons are allowed to register their trade-marks in use
had judgment below. The opinion states the facts. in international commerce, and secure legal and equitable protection for them in this country if they are
Lehman & Park, C. C. Nourse and George G. Wright, citizens of any foreign couutry in which citizens of for appellant. the United States are accorded similar privileges. By L. Todhunter, Runnells & Walker and Cole, McVey the convention between France and the United States, | & Clark, for appellee. proclaimed in 1869, citizens of the United States were
BECK, J. The petitiou describes the lots upon which accorded privileges in France similar to those granted by this act to citizens of otber countries. Plaintiff
the distillery, named in the petition, is situated, and
alleges that it was erected and is used for the manumay therefore claim the benefit of this act. But it is said that the convention between France
facture of intoxicating liquors for unlawful purposes,
and that defendant now is engaged in the unlawful and this country requires citizens of France to de
sale of such liquors in the premises described. It is posit duplicate copies of their marks both in Paris
alleged that “the defendants manufacture, keep for and in Washington, and the deposit in Paris is not
sale, aud sell within this State, and at the place aforeproven. To this it may first be said that the act of
said, intoxicating liquors, to be taken out of the State, Congress of 1881 was later than the convention, and
and there used as a beverage, and for other purposes that so far as courts of law are concerned, subse
than for medicinal, mechanical, sacramental and culquent legislation prevails over treaty provisions in tbe administration of municipal law. See Cherokee
inary purposes, contrary to the statute of Iowa.” Be. Tobacco case, 2 Wall. 632; Taylor et al. v. Morton, 2
fore answer the plaintiffs dismissed their action as Curtis C. C., 454; The Clinton Bridge, 1 Woolworth, 150.
against the International Distillery. Kidd answers But the second and conclusive answer to this objec
the petition, denying all of its allegations. He also tion is that the article in the convention relied on by
alleges that he is “authorized by the board of supercounsel does not require the deposit of duplicate
visors to manufacture and sell intoxicating liquors," copies of trade-marks in Paris by French citizens.
exoept as prohibited by law, and that he bas in the The article, as proclaimed in English, was as follows:
manufacture and sale of liquors complied with all the "If the owners of trade-marks, residing in either of
requirements of the law. the two countries, wish to secure their rights in the
There is no controversy as to the material facts of other country, they must deposit duplicate copies of
the case, which are substantially as follows: The dethose marks in the patent office at Washington and in
fendant, during the time he has been engaged in operthe clerk's office of the Tribunal of the Seine at
ating the distillery, has held a permit from the board Paris.
of supervisors, regularly issued, authorizing him to In a decisiou rendered by General Leggett, when
manufacture and sell intoxicating liquors for mechanicommissioner of patents, December 6, 1872, this arti
cal, medicinal, culinary and sacramental purposes cle was construed to mean that citizens of the United
only, as prescribed by law. All liquors manufactured States should deposit duplicate copies in Paris only
by defendant were disposed of in this manuer: His to secure rights in France, and that French citizens
agent would contract sales in New York and other only need to deposit their marks in Washington to
cities outside of this State, and upou his order defendsecure their rights iu this country. See Browne on
ant shipped the liquor to the purchaser, at the same Trade-marks, 559, note at bottom of the page.
time forwarding a draft attached to the bill of lading, In 1877 the French minister at Washington called
upon payment of which the liquors were delivered to the attention of the Secretary of State to the fact
the purchaser. The monthly reports made by defendthat the French draft of this treaty as signed con
ants in compliance with the requirements of the law tained in this article after the verb the word “re.
show that the purposes of all sales made by him were spectivement” or “respectively,” which did not appear
for exportation outside of the State of Iowa. These in the English draft, as proclaimed by President
reports also contain this language: “No liquors of Grant. The Secretary of State responded that the
any kind sold to any person in the State of Iowa.” It article was construed by the United States as if the
will be discovered that the showing is not entirely omitted word had been used. See Browne on Trade
clear as to the place of sale. It was declared in the remarks (2d ed.), 559. It is thus apparent that whether
ports that the sales were “for exportation out of the the law of 1881 or the treaty of 1869 prevails, the
State of Iowa." It is again said that no liquors of any plaintiff is in court with all the rights of protection to
kind were sold in the State. It is probable that the its trade-marks that this court could accord to a citi.
defendant means to say in his report that the sales zen of the United States.
were made to persons outside of the State, for the purThe decree will be for a perpetual injunction, and for
pose of exportation, from the State, by the purcbasreference to Rufus B. Smith as special master to take
ers. It is clear that the purpose of the sales, as shown testimony and report on the amount of damages sus
by his reports, was “exportation outside of the State tained by plaintiff by reason of the use of its trade
of Iowa.” It is perhaps of but little importance marks by defendants.
* 34 N. W. Rep. 1.
whether the sales were made in the State or out, or that the boiler manufactory, according to the condiwhether the purpose was for the defendant or the tions of the illustration, is under the laws of the State purchaser to export the liquor's out of the State. It is a nuisance-a thing doing injury to the people of the very plain that the reports, as well as other evidence State, by interfering with their comfortable enjoyin the case, show that the sales made by the defendant ment of property, and may therefore be abated to the were “ all for exportation outside of the State of statute. The same things are true of a distillery, Iowa," and that it is not shown in any way that the which under the laws of this State is a nuisance. liquors were sold for mechanical, medicinal, culinary These thoughts need not be exfended. They lead to and sacramental purposes, as authorized by law.
the conclusion that counsel's position upon this branch The sole question presented by the case 18 this: Un of the case is unsound. der our statute, may intoxicating liquors be manufac It is admitted on all hands that if the statute in tured in this State for transportation and sale beyond | question was enacted in the rightful exercise of the its borders, without regard to the purpose of its use? police power of the State, it is valid. It is not imporOr in other words, is the exportation out of the State | tant that we should here attempt to define what is a purpose for which intoxicating liquors may be law called the police power, or inquire into its extent. It fully manufactured and sold ?
is sufficient to say that it is a power which may be ex[Omitting a question of construction of the statute.] ercised by the State to secure, promote and protect
Counsel for defendant maintain that if their inter- | the welfare, comfort, peace and good morals of the pretation is not correct, then the law is invalid, on the people of the State. We need not make extended inground that it is in confiict with the exclusive consti quiry whether this power may be exercised to bestow tutional right of Congress to regulate commerce like benefits and protection to the people of sister among the States. Counsel's position, as we under States. It would seem indeed, that in view of the in
timate relations of the people of the several States, tion we adopt, forbids the manufacture of intoxicat | being in fact one people, the subjects of one general ing liquors for the purpose of transportation and sale government, with common interests for good governout of the State, while its manufacture for sale for | ment and prosperity of all, the State should in its leglawful purposes is authorized. Its manufacture for islation have regard to the peace, prosperity, comfort, permitted purposes being lawful, it is a proper subject and good morals of all the citizens of the Union. of property and of commerce. The statute, in for. Surely the State ought not to permit things to be done bidding its transportation, interferes with inter-State | within its borders which subvert the peace, prosperity commerce, and is a regulation thereof, which under and good morals of the people of other States. No one the Constitution is exclusively within the authority will doubt that it is not only within the authority of of Congress. We think brief consideration will serve the State to suppress conspiracies and combinations to point out the error of this position.
with a her borders, intended to disturb the peace of a The statute, as we interpret it, authorizes the manu sister State, but that it ought to do so. And surely facture of liquors for permitted purposes, and forbids even counsel for the defendant will not contend that it for all other purposes. It does not forbid the trans the power of the State may not be exerted to prevent portation of liquors out of the State. See Code, $ 1553, the impairment of the health or good morals of the and amendment thereto, by chapter 143, Acts 20th people of another State, by the pursuit of business, or Gen. Assem. The prohibition of the statute is di by acts done within our own State. Will it be for a rected alone to the manufacture of intoxicating | moment contended that the State cannot suppress the liquors for purposes other than for sale according to publication of obscene literature intended to be circuthe provisions of the statute. Code, $ 1524. If the law lated exclusively in other States? Or may it not probe obeyed, no liquor will be manufactured for trans bibit the manufacture within the State of unwholeportation. Its operation is to prevent the production some food for transportation and sale in other States ? of an article which might be lawfully transported out Not alone do the true doctrines of constitutional law of the State. Now commerce consists in the inter deny that the power of the State is so restricted-huchange of commodities or property which is the sub- | manity, patriotism, inter Stato comity and Chrisject of trade. It does not consist of the impossible interchange of things not in existence. There must But if it be assumed that the police power of the be articles of trade before commerce can exist. How State may be exercised to secure benefits and protecthen can it be said that the stntute, by prohibiting the tion to the State alone, the prohibition of the statute manufacture of an article of trade, regulates com in question, as we interpret it, finds ample support in merce? But if this view be not correot, and the au the demand for protection of our people from the thority to regulate commerce extends to the regula. evile which would flow from the unrestricted manution of the production of articles of commerce, then facture of intoxicating liquors. It is proper to rethe State is deprived of all authority to tax, license, mark here that this power may not be arbitrarily or prohibit or otherwise regulate the manufacture and capriciously exercised, and never for purposes other the manufacturers of all articles which are intended, than the protection of the people and the suppression when produced, to be the subject of inter-State com of evils threatening the subversion of the peace, commerce. One illustration will serve to show the effect forts and good morals of the people, and their quiet of the doctrine to broaden the exclusive authority of and full enjoyment of property. The evils flowing Congress to regulate commerce. A manufactory of from intoxicating liquors arise wholly from its use as steam boilers for sale and transportation without the a beverage. But this use is widespread, reaching all State is established within the residence portion of a classes of the people, and both sexes, and every age. city of this State, with dwellings of citizens adjacent No condition of life is wholly exempt therefrom. An thereto. Now under the doctrine advanced by coun enumeration of all the evils arising from the use of insel, as the purpose of the owner of the manufactory is toxicating liquors need not be attempted. They are to produce articles for inter-State commerce, the nuis. numerous, and affect the people collectively and indiance cannot be abated under the laws and authority vidually. Idleness, poverty, pauperiem, crime, insanof the State, for the reason that the abatement would ity, disease, and the destruction of human life, follow be the enforcement of regulations of commerce, a sub- | indulgence in the habit of using intoxicating drinks. ject exclusively within the authority of Congress. Millions of our fellow-countrymen are addicted to this Surely it will not be contended that the authority of babit, and of those, millions become drunkarde. Congress reaches to this extent. But it may be urged Homes are broken up, and domestic peace is destroyed