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TAFT, J. Plaintiff alleges that it is a French corporation engaged for some years past in manufacturing a liqueur of superior quality, known and branded by plaintiffs as "Benedictine," which it sells extensively and at profit in Europe and America in peculiarly-shaped bottles with labels and trade-marks, described in the petition and duly registered in the patent office at Washington, and that defendats have put up and sold an article in imitation of plaintiff in bottles with labels and trade-marks exactly like those of plaintiff, thereby deceiving the public and defrauding the plaintiffs. An injunction is asked and damages. The answer of defendants raises two issues, first, that the trade-marks, labels and advertisements claimed by defendant were in use long before defendant adopted them, and were registered at the patent office several years prior to plaintiffs' registration of them; and second, that they contain misrepresentations as to the person manufacturing the liqueur, which deceive the public and so disentitle plaintiffs to relief. Defendants do not deny that they are putting up and selling an article in imitation of the plaintiffs' article in bottles with labels, marks and advertisements exactly like those described in the petition. An allegation at the close of the answer, which seems to be such a denial when carefully read with the rest of the answer, turns out to be only an argument from previous allegations and no denial of fact at all.

The evidence discloses the following state of fact: At Fécamp in Normandy, France, the Benedictine Monks had a monastery for several centuries before the French revolution. They invented a liqueur or cordial made from cognac and a decoction of an herb growing wild in that country and other ingredients, and made it for their own use. They preserved the recipe as a secret in a book of recipes. In 1792 the abbey of Fécamp was destroyed and the monks driven out. A. Legrand, Senior, of Fécamp, one of whose ancestors was an attorney-general of the abbey, came into possession of the book of receipes by inheritance. In 1863 he began the manufacture of the liqueur in question, on an estate which was formerly part of the lands of the abbey, and where now is situated a museum of relics of the abbey. The recipe of the monks was followed exactly in the manufacture of the liqueur. The recipe is preserved as a secret known only to Le Grand, Aine, and two sons in business with him. In 1863 the liqueur first became an article of commerce, and then for the first time was it given the name "Benedictine." In 1876 Le Grand, Aine, registered his trade-marks for this liqueur in the patent office at Washington.

They were:

corporation which was called the "Société Anonyme de la distillerie de la Benedictine liqueur de l'Abbaye de Fécamp," to which he conveyed all the property used for the manufacture of this liqueur, together with his trade-marks, business assets and good will, and received therefor 4,500 shares out of the 5,000 shares of the company. He became sole director of the company. In 1883, on behalf of this company, he registered in the patent office at Washington the trademarks described in the petition, on which the controversy arises at bar. These trade-marks include all that have been described above as registered in the name of A. Le Grand in 1876. Also a label containing the words: "Liquor Monachorum Benedictorum Abbatiae Fiscanensis." Also a label containing the following, in French: "Every bottle of the genuine Benedictine liqueur bears on the lowest label a fac simile of the General Director, A. Legrand, Aine." The broadest leaden ligature surrounding the neck of the bottle bears the following marks and inscription: * Veritable ↑ Benedictine *." The cork is marked all around with * "Veritable Liqueur Benedictine.*" At last on the under side of the cork is to be found: "D. O. M."

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To increase the sale of the liqueur, advertisements of its good qualities accompany each bottle, and placards are sent to be hung up in saloons and liquor houses. In these advertisements the liquuer is spoken of as the genuine liqueur of the Benedictine Monks of the Abbey of Fécamp. It is said that the cordial has not varied since 1510; that the ancient ingredients are strictly preserved. Then a general description is given of its ingredients, and then quite an extended account of its good qualities, which, in the longer advertisements, is accompanied by certificates of French physicians and by wood cuts of the distillery building, the laboratory, the bottling room, and finally, of two rooms in the museum of relics from the old Abbey of Fécamp. At the bottom of the advertisement is "General Warehouse, A. Legrand, Aine, at Fécamp." Later advertisements contain the name of the plaintiffs at their head.

On these facts counsel for defendants ask for a decree dissolving the temporary injunction and dismissing the petition on four grounds:

First. That the word "Benedictine" is a generic term denoting only the kind of liqueur sold, and cannot be used as a trade-mark.

Second. That the labels, devices and advertisements imply and lead the public to suppose that the Beyedictine Mouks now manufacture the liqueur, and that a court of equity will not protect the plaintiffs in placticing such a fraud upon the public.

Third. That even if A. Le Grand, Aine, might have had a right to protection in equity for these trade marks before his assignment of them to the plaintifs. 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 misand the letters A. L., Le Directeur, beneath.

Second. A representation of the Holy St. Benoit, former Abbot of Fécamp, in a circle, used as a seal impress on the cork of the bottle.

Third. The coat of arms of the Abbey of Fécamp, used also as a seal impress on the face of the bottle. Fourth. The word "Benedictine.'

Fifth. A lead band running round the top of the bottle and down the side ending beneath the seal of the abbey on the face of the bottle.

Sixth. A fac simile of the signature of A. Le Grand, Aine, under the words "Veritable Liqueur Benedictine, Brevetée France et a l'Etranger."

How long he had been using these trade-marks does not clearly appear, but it had probably been since he began the manufacture in 1863. In 1876 he organized a

representation that Le Grand, Aine, is still engaged in the manufacture, which disentitles plaintiffs to equitable protection.

Fourth. That even if plaintiffs' right to equitable protection is otherwise perfect, it is a citizen of the Republic of France, and only entitled to enjoy this protection after taking certain steps prescribed by treaty, which steps have neither been alleged nor proven at bar.

I shall consider these objections in their order. First. Le Grand, Aine, first applied the name "Benedictine" to this liqueur. It had never been applied to a liquor of any kind before. It was a new use of an old word. There is nothing in the word describing the article by its ingredients or qualities. It does refer to the inventors of the article, and that is doubt

less its derivation; but that is no objection to its use as a trade-mark. When Le Grand, Aine, first used this word, then, as a trade-mark for his liqueur, it was a legal trade-mark. Having once rightly adopted the word as a trade-mark, he cannot now be deprived of it unless he has himself abandoned it, and there is no abandonment established by the evidence. By Le Grand's use of "Benedictine" as a trade-mark in a successful and world-wide sale of the article, he has made the trade-mark mean the article; but that is no reason why he cannot still have an assignable property in the trade-mark. The latest case on this point is Celluloid Manuf. Co. v. Cellonite Manuf. Co., decided by Mr. Justice Bradley, of the United States Supreme Court, on the circuit, reported, page 125, vol. 36, of the Albany Law Journal. The question there was as to the use of the word "celluloid" as a trade-mark. The justice says:

The complainant's assignors, the Hyatts, coined and adopted the word when it was unknown and made it their trade-mark, and the complainant is assignee of all the rights of the Hyatts. When the word was coined and adopted, it was clearly a good trade-mark. The question is whether the subsequent use of it by the public, as a common appellation of the substance manufactured, can take away the complainant's right. It seems to me that it cannot.

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ments are the two expressions which, it is said, denote that the monks are the present makers. Evidence has been adduced as to the meaning of the preposition and article des, from which it appears that as used here, it has an idiomatic meaning denoting origin, i. e.. "in accordance with the method of." With such a meaning, the words certainly do not contain a misrepresentation. But I do not think it necessary to translate des by a paraphrase. Des in this connection means literally "of the." The literal translation of the French would be, "The genuine Benedictine liqueur of the Benedictine Monks of the Abbey of Fécamp," and of the Latin the same, omitting the words 'genuine Benedictine." The use of the possessive case, or the preposition "of" in English, may either denote possession or origin. Crockett's leather cloth may mean cloth manufactured and owned by Crockett, or it may mean cloth manufactured according to Crockett's method or invention. It follows that the expressions relied on may have one meaning, and that an ordinary one in which there is no misrepresentation; for the liquor is made according to the mode invented by the Benedictine Monks of the Abbey of Fécamp, and is made in the very place where they made it, under the same conditions as to climate, soil, water, etc. The rest of the advertisements point to this as the meaning. The advertisement dwells at length on the ingredients as if to impress the reader with the recipe rather than the maker. The pictures given in the advertisements of the distillery, the bottling room, the laboratory, the packing room are

"As a common appellative, the public has the right to use the word for all purposes of designating the article except one; it cannot use it as a trade-mark, or in the way a trade-mark is used, by applying it to or stamping it upon the articles; the complainant alone can do this; and any other person doing it will in-entirely unlike the popular idea of a monastery. fringe the complainant's right."

In this case the word "celluloid" was invented. It never had been used as a word before to mean any thing. At bar "Benedictine" was a word in common use, but it had never been used before to designate a cordial. In that new use the trade-mark property is as clear as if it were a new word. Selchow v. Baker, 93 N. Y. 59, cited by Justice Bradley, seems to settle this. The words in that case were "sliced animals" applied as a trade-mark to a puzzle consisting of card-board animals so sliced that when taken apart it was a puzzle to restore them. In deciding that this might be used as a trade-mark, Judge Rapallo said: "Our conclusion is that where a manufacturer has invented a new name,consisting either of a new word or a word or words in common use, which he has applied for the first time to his own manufacture or to an article manufactured by him to distinguish it from those manufactured and sold by others, and the name thus adopted is not generic or descriptive of the article, its qualities, ingredients or characteristics, but is arbitrary or fauciful, and is not used merely to denote grade or quality, he is entitled to be protected in the use of that name, notwithstanding it has become so generally known that it has been adopted by the public as the ordinary appellation of the article."

So that a new word, and an old word in a new sense, are equally available as trade-marks.

The first objection of defendants' counsel cannot be maintained.

Second. He who comes seeking the protection of a court of equity, must come with clean hands. If he has made a trade-mark valuable to himself by fraud, equity will not help him to preserve it. It is claimed at bar that the devices, trade-marks and advertisements used by Le Grand, Aine, were intended to and did lead the public to think that the Benedictine Monks were the manufacturers of the liqueur made and sold by him. The Latin words · Liquor Monachorum Benedictorum Abbatiæ Fiscanensis," which appear on his bottles, and the French words, " Veritable Benedictine Liqueur des Moines Benedictins de L'Abbaye de Fécamp," which appear on the advertise

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There is one picture of a room in the distillery described as a museum, containing objects of interest coming from the Abbey of Fécamp, showing that the abbey as a residence for monks must have been given up. Then on one side of the bottle is a caution that every bottle of the genuine Benedictine must bear the fac simile of the managing director, and on the other side is this fac simile, "A. Le Grand, Aine." His initials also appear on another label under the words "Le Directeur." On other advertisements the general warehouse is said to be that of A. Le Grand, Aine, at Fécamp. It was thought by counsel for defendant to be full of suspicious meaning that Le Grand, Aine, designated himself as managing director instead of proprietor. I do not think so. Le Grand, Aine, was manager as well as proprietor. The French word directeur" and the English word " manager" do not suggest the head of a monastery, but the head of a business house. If a monk or any other person desired to advertise his liquor as of monkish make, he would hardly use as a trade-mark and advertisement the fac simile A. Le Grand, Aine, Directeur, which is not a monkish name, and does not indicate the celibacy of its author.

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From what has been said therefore I do not think that either the advertisements or the trade-marks give the impression that the liqueur is made by the monks. It is in evidence that some people have thought so, but there was very little to show that they got this impression from the words of the advertisements or labels. The fact that it is generally known that Chartreuse is made by the Carthusian Monks would explain an impression that the liqueur known by another monkish name was manufactured by monks. There is nothing at bar to make Le Grand, Aine, responsible for such impressiou if it exists.

Counsel have cited a decision of Commissioner of Patents Hall, reported in 40 Official Gazette, 443, Ex parte M. Block & Co., in which registration was refused for the trade-mark upon whisky of "K. of L." and Knights of Labor Distillery," on the ground that it was fraudulently used by the manufacturer to give the impression that it was either made by the

Knights of Labor or had its origin with them, and so attract the custom of sympathizers with that order, when in fact the Knights of Labor had nothing to do with the whisky at all. That case is very different from the one at bar, for it does not appear that the name Benedictine will attract the sympathy of any class of purchasers, or that it was intended to do 80, and further, it does appear that the Benedictines had sufficient to do with originating the liqueur to justify the use of their name as a trade-mark.

Third. The third objection to plaintiff's right is founded on the same principle of law as the second. It is claimed that the use by the plaintiffs of the trademark of A. Le Grand, without an indication that it has changed ownership, is a representation to the public that A. Le Grand is still manufacturing the liqueur, and is therefore a falsehood. It is true that in the case of Manhattan Medicine Co. v. Wood, 108 U. S. 218, and in Siegert v. Abbott, 61 Md. 276, the general rule is laid down that where a trade-mark is assigned and used by the assignee, the latter, in order to avoid misrepresentation, should indicate that the present owner enjoys by assignment from the original proprietor.

In those two cases the trade-marks and labels used by the complainants contained distinct assertions that the article was manufactured by a certain person and at a certain place, both of which by the assignment to the complainant had become false. Such too were the facts in the Leather Cloth Manuf. Co. v. The American Cloth Manuf. Co., 11 H. L. C. 533, relied on by defendant.

There is another class of trade-marks where the trade-mark contains no express statement as to who the manufacturer or seller of the article is, but where the association of the article with the trade-mark comes to indicate that the manufacturer or seller is always the same. Where this is the indication by the association, then use by an assiguee without qualification is just as much of a misrepresentation as if the indication had been express. The general rule would certainly apply to this class of cases. Such was the case in Sherwood v. Andrews, 5 Am. Law Reg. 588.

But in trade-marks containing no distinct assertion as to who the maker or seller is, association with the article sometimes comes to represent not the seller or manufacturer, but the place or process or quality of manufacture. This class may include cases where the name of the original manufacturer is the mark. In such a case, so long as the place or process or quality of manufacture remains the same, the representation which the association between the article and the trade-mark makes to the public is true, no matter who is the owner. Here the reason for the rule laid down in the cases cited ceases, and so should its application. The distinction which I am trying to make is brought out in the opinions of Lord Justice Turner and Lord Cranworth in the case of Bury v. Bedford, 4 De Gex, Smith & Jones, 369, and 11 H. L. C. 533, and is alluded to in the opinions of Lord Westbury in the cases of Leather Cloth Co. v. American Leather Co., 4 De Gex, Jones & Smith, 143, and Hall v. Barrows, id. The question in these cases was as to the assignability of trade-marks. No reference whatever is made in them to the necessity for a qualifying statement by the assignee of a trade-mark in its use, and it might seem therefore at first that the opinions referred to have no bearing upon the question I am discussing. But a closer examination will show that what is meant when it is said by those eminent English judges that a trade-mark is assignable, is that it is so assignable as that it can be used by the assignee exactly as the assignor used it, i. e., without a qualifying statement.

To hold that the assignee cannot use a trade-mark of his assignor without qualifying its use by an accompanying statement of a change of ownership is to hold that the trade-mark in question is not strictly assignable, for used with such a statement, the trademark is not the trade-mark of the assignor.

It would seem to follow from the opinions referred to that the question as to whether a qualifying statement must accompany an assigned trade-mark is to be determined by what its association with the article has come to indicate. At bar the various trade-marks in which there is no distinct assertion as to personal manufacture or ownership, have come by association to mean to the public that the liqueur in connection with which they appear is made at a distillery at Fécamp, in France, of certain herbs of Normandy and cognac, and other ingredients, according to an invariable recipe of the Benedictine Monks. It would follow that the plaintiff, to whom was assigned the distillery and the recipe with the trade-marks, might use the latter to designate the same liqueur produced as indicated without saying to the world what to it is wholly immaterial, that the ownership of the trademarks, distillery and recipes had changed.

But if I am mistaken either in maintaining an exception to the general rule expressed by Justice Field in the Manhattan Co. v. Wood, or in applying that exception to the facts at bar, because the name A. Le Grand, Aine, and Le Directeur, with A. L. under it, should be construed to be a distinct assertion as to the person manufacturing the liqueur, I am still of the opinion that the third objection is unfounded. If I am mistaken in either respect, then the trade-marks at bar indicate, either by association or in meaning, the person engaged in the manufacture of the liqueur. That was, before the assignment, Le Grand, Aine. The evidence shows that he is still engaged in the manufacture as sole director of the plaintiffs and the owner of 4,500 shares of its total capital of 5,000 shares. The representation to the public as to the manufacture of the article is material only as it conveys to the public the information that the skill or care, or superintendence of the same mau is used in making it. The public is not concerned whether he makes it as sole proprietor, as the member of a firm or the manager of a company. As either he is the manufacturer. Until he dies therefore or severs his connection with the company, a distinct assertion in the trade-mark, or an implication by association, that he is the manufacturer of the liqueur, is not a misrepresentation.

The correctness of this view is fully established by the two cases of The Dixon Crucible Co. v. Guggenheim, 2 Brewst. 321, and in Meriden Britannia Co. v. Parker, 39 Conn. 450. In the first of these cases the trade-mark contained the words "Jos. Dixon & Company," which was the name of the firm originating the trade-mark. The firm became the corporation. The Joseph Dixon Company and the trade-mark passed by assignment. It was held that the use of " 'Joseph Dixon & Co." on the trade-mark was not a material misrepresentation by the corporation sufficient to disentitle it to relief in equity. In the Connecticut case the proprietor of the manufactory was the Meriden Britannia Company, the complainant. It manufactured silver-plated utensils, and used in the trademark stamped upon the goods the words "Manufactured by the Rogers Bros." There were in the employ of the company as superintendents of silverplating three Rogers brothers who had been in business for themselves, had used such a trade-mark and had sold it to the company. It was held that as the trade-mark assured to the public the skill of the Rogers Bros. in the make of the articles so stamped, and as it appeared that such skill was in their make,

the use of the trade-mark by the company was not a material misrepresentation. The facts at bar are more clearly within the rule than in the cases cited.

The third objection to plaintiff's right must be overruled.

Fourth. The fourth and last objection of defendant's counsel to plaintiff's right to protection at bar is that being a French alien, it has not taken a step which is a condition precedent by treaty with France to its asserting any right in its trade-mark.

Plaintiff has proven registration of its trade-mark in the patent office at Washington by the certificate of the commissioner of patents, in which it is stated that it deposited fac similes of the marks in the office,

CONSTITUTIONAL LAW – PROHIBITORY LIQUOR LAW-COMMERCE.

IOWA SUPREME COURT, SEPT. 10, 1887.

PEARSON V. INTERNATIONAL DISTILLERY.*

The Iowa statute prohibiting the manufacture or sale of intoxicating liquors, even for exportation, unless manufactured within the State for mechanical, medicinal, cullnary or sacramental purposes, and prohibiting also the sale of imported foreign intoxicating liquor, unless in its original packages and quantities, is constitutional.

and complied with the other regulations of the act of ACTION to declare a distillery a nuisance, and to

Congress of 1881 on trade-marks. By that act persons are allowed to register their trade-marks in use in international commerce, and secure legal and equitable protection for them in this country if they are citizens of any foreign country in which citizens of the United States are accorded similar privileges. By the convention between France and the United States, proclaimed in 1869, citizens of the United States were accorded privileges in France similar to those granted by this act to citizens of other countries. Plaintiff may therefore claim the benefit of this act.

But it is said that the convention between France and this country requires citizens of France to deposit duplicate copies of their marks both in Paris and in Washington, and the deposit in Paris is not proven. To this it may first be said that the act of Congress of 1881 was later than the convention, and that so far as courts of law are concerned, subsequent legislation prevails over treaty provisions in the administration of municipal law. See Cherokee Tobacco case, 2 Wall. 632; Taylor et al. v. Morton, 2 Curtis C. C., 454; The Clinton Bridge, 1 Woolworth, 150. But the second and conclusive answer to this objection is that the article in the convention relied on by counsel does not require the deposit of duplicate copies of trade-marks in Paris by French citizens. The article, as proclaimed in English, was as follows: "If the owners of trade-marks, residing in either of the two countries, wish to secure their rights in the other country, they must deposit duplicate copies of those marks in the patent office at Washington and in

the clerk's office of the Tribunal of the Seine at Paris.

In a decision rendered by General Leggett, when commissioner of patents, December 6, 1872, this article was construed to mean that citizens of the United States should deposit duplicate copies in Paris only to secure rights in France, and that French citizens only need to deposit their marks in Washington to secure their rights in this country. See Browne on Trade-marks, 559, note at bottom of the page.

In 1877 the French minister at Washington called the attention of the Secretary of State to the fact that the French draft of this treaty as signed coutained in this article after the verb the word "respectivement" or "respectively," which did not appear in the English draft, as proclaimed by President Grant. The Secretary of State responded that the article was construed by the United States as if the omitted word had been used. See Browne on Trademarks (2d ed.), 559. It is thus apparent that whether the law of 1881 or the treaty of 1869 prevails, the plaintiff is in court with all the rights of protection to its trade-marks that this court could accord to a citizen of the United States.

The decree will be for a perpetual injunction, and for reference to Rufus B. Smith as special master to take testimony and report on the amount of damages sustained by plaintiff by reason of the use of its trademarks by defendants.

enjoin the manufacture, the selling, and keeping for sale therein, of all intoxicating liquors. Plaintiff had judgment below. The opinion states the facts. Lehman & Park, C. C. Nourse and George G. Wright, for appellant.

L. Todhunter, Runnells & Walker and Cole, McVey & Clark, for appellee.

BECK, J. The petition describes the lots upon which the distillery, named in the petition, is situated, and alleges that it was erected and is used for the manufacture of intoxicating liquors for unlawful purposes, and that defendant now is engaged in the unlawful sale of such liquors in the premises described. It is alleged that "the defendants manufacture, keep for sale, and sell within this State, and at the place aforesaid, intoxicating liquors, to be taken out of the State, and there used as a beverage, and for other purposes than for medicinal, mechanical, sacramental and culinary purposes, contrary to the statute of Iowa." Before answer the plaintiffs dismissed their action as against the International Distillery. Kidd answers the petition, denying all of its allegations. He also

alleges that he is "authorized by the board of supervisors to manufacture and sell intoxicating liquors," except as prohibited by law, and that he has in the manufacture and sale of liquors complied with all the requirements of the law.

There is no controversy as to the material facts of the case, which are substantially as follows: The defendant, during the time he has been engaged in oper

ating the distillery, has held a permit from the board of supervisors, regularly issued, authorizing him to manufacture and sell intoxicating liquors for mechanical, medicinal, culinary and sacramental purposes only, as prescribed by law. All liquors manufactured by defendant were disposed of in this manner: His

agent would contract sales in New York and other cities outside of this State, and upon his order defendant shipped the liquor to the purchaser, at the same time forwarding a draft attached to the bill of lading, upon payment of which the liquors were delivered to the purchaser. The monthly reports made by defendants in compliance with the requirements of the law show that the purposes of all sales made by him were for exportation outside of the State of Iowa. These reports also contain this language: "No liquors of any kind sold to any person in the State of Iowa." It will be discovered that the showing is not entirely clear as to the place of sale. It was declared in the reports that the sales were "for exportation out of the State of Iowa." It is again said that no liquors of any kind were sold in the State. It is probable that the defendant means to say in his report that the sales were made to persons outside of the State, for the purpose of exportation, from the State, by the purchasers. It is clear that the purpose of the sales, as shown by his reports, was "exportation outside of the State of Iowa." It is perhaps of but little importance

*34 N. W. Rep. 1.

whether the sales were made in the State or out, or whether the purpose was for the defendant or the purchaser to export the liquors out of the State. It is very plain that the reports, as well as other evidence in the case, show that the sales made by the defendant were "all for exportation outside of the State of Iowa," and that it is not shown in any way that the liquors were sold for mechanical, medicinal, culinary and sacramental purposes, as authorized by law.

The sole question presented by the case is this: Under our statute, may intoxicating liquors be manufactured in this State for transportation and sale beyond its borders, without regard to the purpose of its use? Or in other words, is the exportation out of the State a purpose for which intoxicating liquors may be lawfully manufactured and sold?

[Omitting a question of construction of the statute.] Counsel for defendant maintain that if their interpretation is not correct, then the law is invalid, on the ground that it is in conflict with the exclusive constitutional right of Congress to regulate commerce among the States. Counsel's position, as we understand it, is this: The statute, under the interpretation we adopt, forbids the manufacture of intoxicating liquors for the purpose of transportation and sale out of the State, while its manufacture for sale for lawful purposes is authorized. Its manufacture for permitted purposes being lawful, it is a proper subject of property and of commerce. The statute, in for bidding its transportation, interferes with inter-State commerce, and is a regulation thereof, which under the Constitution is exclusively within the authority of Congress. We think brief consideration will serve to point out the error of this position.

The statute, as we interpret it, authorizes the manufacture of liquors for permitted purposes, and forbids it for all other purposes. It does not forbid the transportation of liquors out of the State. See Code, § 1553, and amendment thereto, by chapter 143, Acts 20th Gen. Assem. The prohibition of the statute is directed alone to the manufacture of intoxicating liquors for purposes other than for sale according to the provisions of the statute. Code, § 1524. If the law be obeyed, no liquor will be manufactured for transportation. Its operation is to prevent the production of an article which might be lawfully transported out of the State. Now commerce consists in the interchange of commodities or property which is the subject of trade. It does not consist of the impossible interchange of things not in existence. There must be articles of trade before commerce can exist. How then can it be said that the statute, by prohibiting the manufacture of an article of trade, regulates commerce? But if this view be not correct, and the authority to regulate commerce extends to the regulation of the production of articles of commerce, then the State is deprived of all authority to tax, license, prohibit or otherwise regulate the manufacture and the manufacturers of all articles which are intended, when produced, to be the subject of inter-State commerce. One illustration will serve to show the effect of the doctrine to broaden the exclusive authority of Congress to regulate commerce. A manufactory of steam boilers for sale and transportation without the State is established within the residence portion of a city of this State, with dwellings of citizens adjacent thereto. Now under the doctrine advanced by counsel, as the purpose of the owner of the manufactory is to produce articles for inter-State commerce, the nuisance cannot be abated under the laws and authority of the State, for the reason that the abatement would be the enforcement of regulations of commerce, a subject exclusively within the authority of Congress. Surely it will not be contended that the authority of Congress reaches to this extent. But it may be urged

that the boiler manufactory, according to the conditions of the illustration, is under the laws of the State a nuisance-a thing doing injury to the people of the State, by interfering with their comfortable enjoyment of property, and may therefore be abated to the statute. The same things are true of a distillery, which under the laws of this State is a nuisance. These thoughts need not be exfended. They lead to the conclusion that counsel's position upon this branch of the case is unsound.

It is admitted on all hands that if the statute in question was enacted in the rightful exercise of the police power of the State, it is valid. It is not important that we should here attempt to define what is called the police power, or inquire into its extent. It is sufficient to say that it is a power which may be exercised by the State to secure, promote and protect the welfare, comfort, peace and good morals of the people of the State. We need not make extended inquiry whether this power may be exercised to bestow like benefits and protection to the people of sister States. It would seem indeed, that in view of the intimate relations of the people of the several States, being in fact one people, the subjects of one general government, with common interests for good government and prosperity of all, the State should in its legislation have regard to the peace, prosperity, comfort, and good morals of all the citizens of the Union. Surely the State ought not to permit things to be done within its borders which subvert the peace, prosperity and good morals of the people of other States. No one will doubt that it is not only within the authority of the State to suppress conspiracies and combinations with n her borders, intended to disturb the peace of a sister State, but that it ought to do so. And surely even counsel for the defendant will not contend that the power of the State may not be exerted to prevent the impairment of the health or good morals of the people of another State, by the pursuit of business, or by acts done within our own State. Will it be for a moment contended that the State cannot suppress the publication of obscene literature intended to be circulated exclusively in other States? Or may it not prohibit the manufacture within the State of unwholesome food for transportation and sale in other States? Not alone do the true doctrines of constitutional law deny that the power of the State is so restricted-humanity, patriotism, inter-State comity and Christianity, all unite in protest against it.

But if it be assumed that the police power of the State may be exercised to secure benefits and protection to the State alone, the prohibition of the statute in question, as we interpret it, finds ample support in the demand for protection of our people from the evils which would flow from the unrestricted manufacture of intoxicating liquors. It is proper to remark here that this power may not be arbitrarily or capriciously exercised, and never for purposes other than the protection of the people and the suppression of evils threatening the subversion of the peace, comforts and good morals of the people, and their quiet and full enjoyment of property. The evils flowing from intoxicating liquors arise wholly from its use as a beverage. But this use is widespread, reaching all classes of the people, and both sexes, and every age. No condition of life is wholly exempt therefrom. An enumeration of all the evils arising from the use of intoxicating liquors need not be attempted. They are numerous, and affect the people collectively and individually. Idleness, poverty, pauperism, crime, insanity, disease, and the destruction of human life, follow indulgence in the habit of using intoxicating drinks. Millions of our fellow-countrymen are addicted to this habit, and of those, millions become drunkards. Homes are broken up, and domestic peace is destroyed

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