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ing before us showing any bad faith on the recorder's part in ref- j
erence to the execution of the order in the election case. The j
abort time which has elapsed since the beginning of the contest
, excludes any such inference. ,

Under our positive law, the sufficiency of the facts upon which
a court is proceeding to punish for contempt may be inquired
into by moans of the writ of habeas corpus: Bev. Stata. 1889,
sec. 5378. Hence it is proper for us to consider whether the
facts before the judge of the criminal court warranted the pun-
ishment of imprisonment for contempt, which he impoeed upon
relator. In my opinion, they did not warrant such impiiaon-
ment.

The relator should be discharged from custody.

It seems to me unnecessary in the circumstances, to go into
the general question of the secrecy of the ballot, or to ascertun
the extent of the immiinity of ballot-boxes, or their contentBi
irom examination in judicial proceedings.

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May, 1895.] Btatb v. Bishop. 66!^

HABEAS CORPUS -WHO ENTITLED TO BE DISOHAROED
ON.— In criminal, as in civil, cases a jadgment is Toid if rendered bj a
ooart baying no jarisdiction either of the aabject matter of the proceed-
ing or of the person of the defendant, and if this want of jansdiction
appears, he most be released apon habeas corpus: Extended note to
Morrill V. Morrill, 23 Am. St. Rep. 110. The jarisdiction of the tribu-
nal whose jadgment is involved over the person detained and the sub-
ject matter may be inquired into at all times on habeas corpus: State
V. Kinmore, 64 Minu. 135; 40 Am. St. Rep. 805, and note. See, also,
the extended note to Muilin v. People, 22 Am. St. Rep. 422.

ELECTIONS-SECRECY OF BALLOT.— A ballot imptiea absolute
secrecy t Williams v. Stein, 88 Ind. 89; 10 Am* Rep. 07.



State v. Bishop.

(128 MnoVBX, S78.]

TRADBMARKS.-THB LABEL OF THE INTERNATIONAL
UNION OF CIOARMAKERS, which does not Indicate that the
cigars are owned or manufactured by the union aa an organlzti^tlon,
, or that it baa any interest or property therein, or by what particu-
lar person or firm the cigars to which it may be attached were manu-
factured, is not a valid common-law trademark.

TRADEMARK OF A UNION OR ASSOCIATION.-The State
may authorize a union or association of workmen to adopt any term
or device as their trademark to distinguish goods prepared by per-
sons who are members of such union or association, and may pro-
hibit other persons from using such trademark or device, and impose
a penalty upon persons who do not respect such prohibition.

TRADE NAMES OR MARKS.— THE LAEEL OF THE CIOAR-
MAKERS' INTERNATIONAL UNION is protected from use by per-
sons who are not members of that union by the statutes of Missouri,
and the use of a counterfeit label is punishable thereunder.

CONSTITUTIONAL LAW-CLASS LEGISLATION.— A statute
authorizing a union or association of workmen to adopt a trademark
or label to be used only on goods prepared by members of that
association does not conflict with the provisions of the state consti-
tution inhibiting the granting to any corporation, association, or In-
dividual of any special or exclusive right, privilege, or immunity.

TRADEMARK OR NAME, GUILTY KNOWLEDGE OF PER-
SON UNLAWFULLY USING.— To sustain a conviction for selling
cigars upon which are a counterfeit label of the Cigarmakers' In-
ternational Union, it is necessary to produce evidence tending to
show that the person making such sale had guilty knowledge that
the label was counterfeit

Eugene McQuilliiiy for the appellant.

R. F. Walker^ attorney general^ for the state.

•'"' BURGESS, J. Defendant was convicted and fined one
hundred dollars in the St. Louis court of criminal correction,
..under an information filed against him in said court by the
assistant prosecuting attorney, charging him with having sold a
box of cigars to one David Kreyling, on June 26, 1894, upon
which there was a counterfeit label of the Cigar Makers' Inter



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570 Statk v. Bishop. [Missomi,

national Union of America^ contrary to^ and in violation of, an
«ct of the general assembly of the state of Missouri, entitled. An
wt to repeal sections 8569, 8570, 8571, 8572, 8573, 8574, 8575,
«676 and 8577 of the Revised Statutes of 1889, entitled "Trade-
marks'^ and to enact eight new sections in lieu thereof: Laws
1893, p. 260. The case is in this court on defendant's appeal.

Sections 1 and 4 of the act under consideration are as fol-
lows:

"Section 1 (sec. 8569). Any person may adopt a trademark
— To be recorded. — ^If any mechanic, manufacturer, association
or union of workingmen, or other person, shall wish to adopt any
particular name, term, design, or device as his or their trade-
mark, to designate, make known, or distinguish any goods, wares,
or merchandise by him or them manufactured or prepared, he or
they may write out a description of such name, term, design, or
device, describing the same accurately, and sign and acknowledge
the same before some officer competent to take the acknowledg-
ment of deeds, and file the same for record in the office of the
secretary of state, by leaving two copies, counterparts or fac-
similes thereof, with the secretary of state; said secretary shall
deliver to such mechanic, manufacturer, *''® association or union
of workingmen, or other person, so filing the same, a duly attested
certificate of the record of the same, for which he shall receive
a fee of one dollar; such certificate shall in all suits and prosecu-
tions under this act, be sufficient proof of the adoption of such
label, trademark, or form of advertisement, and of the right of
such mechanic, manufacturer, association or union of working-
men, or other person, to adopt the same. No label, trade-
mark, or form of advertisement shall be recorded that in any
way resembles or would probably be mistaken for a label or trade-
mark already of record.*'

"Sec. 4 (sec. 8572). Penalty for keeping or selling goods with
false brand. — Any person, persons, association or union of work-
ingmen, or body corporate or politic, who shall vend or keep for
sale any goods, wares, merchandise, compounds, or prepara-
tions upon which or in connection with which any forged, imita-
tion, or counterfeit label, brand, stamp, wrapper, imprint, en-
graving, bottle, or trademark shall be placed, affixed, or used,,
and intended to represent the said goods, wares, implements, mer-
chandise, compounds, or preparations, as the genuine goods,
wares, implements, merchandise, compound, or preparation
of any other person or persons, association or union of work«

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Ha7» 1895]



State v. Bishop.



671



ingmen, or body corporate or politic, knowing the same to
be imitation or counterfeit, shall be deemed guilty of a
misdemeanor, and, upon conviction thereof, shall be pun-
ished by a fine of not less than one hundred dollars nor
more than five thousand dollars, or by imprisonment in the
county jail not less than one month nor more than twelve months,
or both, and shall also be liable in a civil action to the person or
persons, association or union of workingmen, or body corporate
or politic, whose goods, wares, implements, merchandise, com-
pounds, or preparations, is imitated or counterfeited, or '^^ whose
label, stamp, wrapper, engraving, imprint, bottle, or trademark
is imitated, forged, or counterfeited, placed, affixed, or used, for
all damages such person or persons, associations or union of
workingmen, or body corporate or politic, may or shall sustain,
both by virtue of the loss of profits and the damage done to the
reputation of the said genuine article, goods, wares, implements,
merchandise, compound, or preparation, by reason of any of the
acts in any section of this chapter mentioned, and may be re-
strained or enjoined by any court of competent jurisdiction from
doing or performing any of the acts herein mentioned.'*

The only objection to the information is that it does not aver
exclusive ownership of the label in question in the cigar maker's
union.

Defendant was a dealer in cigars in the city of St. Louis, and on
the twenty-sixth day of June sold to one David Kreyling a box of
cigars upon which there was a counterfeit label of the Cigar
Makers' International Union of America, which is as follows, to
wit:



SEPT., 1880.

ISSUED BY AUTHORITY OF THB

CIGAR MAKERS' INTERNATIONAL UNION

OP AMERICA.

UNION-MADE CIGARS.

This Obstifies, That the Cigars contained
in this box have been made by a First-class
workman, a member of the Cigar Makers* In-
ternational Union of America, an organiza-
tion opposed to inferior, rat-shop, coolie,
prison or fiithy tenement-house workman-
ship. Therefore, we recommend these cigars
to all smokers throughout the world.

All infringements upon this label will be
punished according to law.

G. W. Perkins, President,
C. M. I. U. of America.

Uigitiaod



DEVICE,



LOCAL



STAMP.



,Cnno]t



57S Statk «• BiBHOP. [MiBioari,

"^ The label, of whicli fhe one introduced in eridenoe ym a
counterf city was dniy registered. Said nnion was a TolaiLtaiT,
unincorporated association of cigar makers^ haying moaben snd
lodges or branches in the yarions states of the Union and Canada;
was not a dealer or manufacturer in cigars; nor was ita object
trade or commerce, but merely for the purpose of promoting the
intellectual, moral, and social qualities of its members. A mem-
ber of the union has the right to use the label, but no other person
has, except those who, or firms which, employ members of the
union in the capacity of dgar makers or packers, who are also per-
mitted to use the label so long as they employ membera of the
union. The label is not the exclusive property of dtizcna of the
state of Missouri, but the right to use it is shared alike by all per-
sons, members of the union, and by them who employ union men.
At the time of the sale of the box of cigars, defendant stated that
the label thereon was the genuine label of the union, and there
was no evidence tending to show that he knew to the contrary.

The first contention is that the label of the Cigar Makers' In-
ternational Union of America is not a trademark, and is, there-
fore, not entitled to protection under the law quoted. It may
be conceded that the label is not what is generally understood hy
law-writers to be a technical trademark, because it does not pre-
tend or intimate that the cigars are owned, prepared, or manu-
factured by the union as an organization, or that, as such anion,
it has any interest or property therein, nor by what particulir
firm or person the cigars to which it may be attached were manu-
factured, the only right conferred on members of the organization
and firms which employ members of the union in the capacity of
cigar makers or packers being to use the same, the object and
purpose being to designate the cigars thus labeled from cigars
manufactured by persons other •** than members of the union.
The same label was held not to be a valid common-law trademark
in McVey t. Brendel, 144 Pa. St. 235; 27 Am. St. Bep. 625;
"Weener v. Brayton, 152 Mass. 101, and by a divided court in
Cigars Makers* etc. Union v. Conhaim, 40 Minn. 843; 12 Ant St
Eep. 726.

In Weener v. Brayton, 152 Mass. 103, it was said: "The right
to a trademark cannot exist as a mere abstract right, independ-
ent of and disconnected from a business. It is not property ai
distinct from, but only as incident to, the business. It cannot
be transferred, except with the business, may be sold with it, and
uidinarily passed with it."



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Maji 1895.] Statb v. Bibhop. 67S

The law not only protects the owner in the user of a technical
trademark, but it protects him in the use of other insignia, bj
label, symbol, or otherwise, which he may attach to merchan-
dise to distinguish it from all other articles of merchandise in
the market, and this protection may be had by injunctiye pro-
ceedings, at the instance of a member of an imincorporated associ-
ation which h&s adopted a label, purporting to be issued by the
association to be placed on boxes of merchandise made by
members of the association, who have the sole legal right under
their articles of association to use the same, against any person
not authorized to make use thereof, and who is making fraudu-
lent use of such label: Carson v. Ury, 39 Fed. Bep. 777, and au-
thorities cited.

If, then, the unlawful use of the label under consideration
could be restrained by injunctive proceedings, instituted by a
member of the union against a competitor in business using the
label without authority, it would seem to follow as a sequence
that the state, by appropriate legislation, might protect the use
of such label, and prohibit its use by persons other than mem-
bers of the union or persons who employ members thereof
in the manufacture and sale of cigars. Certainly ^* no
personal rights or principles of public policy are violated
by such legislation, and this is true, even though the leg-
islature may have used the word ^'trademark,*' in the sense
that it is ordinarily understood and used - by text-writers and
defined by judicial decisions.

In People v. Fisher, 50 Hun, 552, the defendant was convicted,
under a statute of the state of New York, of counterfeiting and
imitating a trademark, and affixing the same to an article of mer-
chandise in violation of the statute. The trademark was devised
by the Cigar Makers' International Union of America, and is the
same one involved in this controversy. In that case it was held,
*'that the members of the organization might lawfully devise,
as they had done, a trademark label to designate the products of
their labor, and that a person counterfeiting and imitating such
trademark, and affixing the same to an article of merchandise,
not the product of the labor of members of the union, was prop-
erly convicted of the offense of counterfeiting and imitating a
traciemark." In course of the opinion it is said: 'The only rec-
ognized indication of a trademark is the source, origin, or owner-
ship of the article of merchandise on which it is placed: Caswell
T. Davis, 68 N. Y. 223; 17 Am. Eep. 233. This meam that the



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674 Btatb v. Bishop. [IUbsouiI,

mark is calculated to diatinguish the articlea which hear it from
those of other makers or yendors. It need not indicate any par-
ticular person as maker, manufacturer, or vendor, or give the
name or address of either. When the mark has become recog-
nized by purchasers as a distinctive designation of a particular
maker, manufacturer, or seller of a certain quality of goods, it will
be sufficient indication of the origin or ownership within the rule
requisite to its protection aa such, although purchasers may not,
from the work or otherwise, be able to teU who is the particular
maker or seller of the *®' article: Godillot v. Harris, 81 N. T.
263; Insurance Oil Tank Co. v. Scott, 33 La. Ann. 946; 39 Am.
Bep. 286. Abstractly and apart from its application and use, a
trademark has no recognized ownership. Its value is in its em-
ployment in making the goods upon which it is placed. This
gives to it the character of property. It is, then, a symbol of
reputation or goodwill: Derringer v. Plate, 29 Cal. 292; 87 Am.
Dec. 170; Bradley v. Norton, 33 Conn. 157; 87 Am. Dec 200."

In Cohn v. People, 149 111. 486, 41 Am. St Eep. 304, defend-
ant was convicted, under the statute of Illinois, for using on boxes
of cigars sold by him a counterfeit of the label of the ''Cigar
Makers' International Union of America,'* and it was held that
punishment of imitators or counterfeiters of trademarks was
properly provided for under the laws of that state under which
the conviction was had: See, also. State v. Hagen (Ind. App.
1893), 33 K E. Bep. 223.

The question then recurs, was the defendant guilty of a misde-
meanor under the statute, if he knowingly placed a counterfeit
label of tlie Cigar Makers' International Union of America on the
box of cigars sold by him to the witness Kreyling?

In a recent decision by the St. Louis court of appeals in the case
of State V. Berlinsheimer, 62 Mo. App. 168, it was held that the
label in question was not protected by the act of 1893, and that a
conviction thereunder for knowingly placing a counterfeit cf the
label upon a box of cigars and then selling the cigars could not he
upheld. The decision is predicated upon the fact that prior to
1893 the statute was designed alone for the protection of for-
eign and domestic trademarks, and that nothing was added there-
to bv the repeal of certain sections and the enactment in lien
thereof of sections 1 and 4, supra. In other words, that the lav
was not so amended as to include a label like the one in qnestion.
Prior to that time •** the statute law was only intended for the



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Majy 1895.] Stat£ v. Bishop. 576

protection of foreign and domestic trademarks: State t. Oibbs,
66 Mo. 133.

While all statutes pertaining to crimes and their punish-
ments should be strictly construed^ and nothing left to intend-
ment, they should not be so construed as to thwart the evident
will and intention of those who enacted them, when that inten-
tion is plainly and fairly deducible from the law itself. When
that is done in this case, we can but conclude that the purpose
and intent of the legislature was to amend the law so as to pro-
tect, and that it does protect, labels as trademarks, when adopted
by associations or union of workingmen to make known and dis-
tinguish goods, wares, and merchandise, manufactured or prepared
by them, from those manufactured or prepared by other per-
sons, unions, or associations. Wherever the law was amended, it
was so as to include "associations or union of workingmen,'' which
is very persuasive at least that the purpose was to protect
them in any label, advertisement, or symbol that they might
adopt as their trademark. Moreover, under the law of 1889,
a trademark was required to be recorded in the office of
the recorder of deeds of the county where the goods,
wares, and merchandise were manufactured, while, by the
act of 1893, it is required to be recorded in the office of secretary
of state, whose certificate is made proof of the adoption of such
label, trademark, or form of advertisement, and of the right of
such association or union of workingmen to adopt the same. The
law as amended expressly conferred upon any association or
union of workingmen a right that they did not possess under the
statute before, that is, the right to adopt as a trademark a label
such as the one in question.

Our conclusion is that the act not only embraces technical
trademarks, but that it includes any label, ^^^ s}anbol, or adver-
tisement which may be or has been adopted by any "association or
union of workingmen'* as a trademark, in accordance with its
provisions; hence our disapproval of the case last cited.

It is next contended that the act of 1893 is unconstitutional,
is class legislation, and in violation of section 53, article 4, of the
state constitution, which inhibits the legislature from "grant-
ing to any corporation, association, or individual any special or
exclusive right, privilege, or immunity.'* We are unable to see
the force of this contention. It is well-settled law, in this state
at least, that a statute relating to persons or things as a class is a
gwieral law: State v. Herrmann, 75 Mo. 340; State v. ToUe, 71



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576 Static v. Bishop. [Misaouiii

Ho. 646; Lyncli t. Murphy, 119 Mo. 163. The law does not
lelate to particular persons or things of a class, but embraoei
within its provisions all associations or unions of workingmen,
and clearly does not fall within the inhibition of the constitu-
tion: Cohn v. People, 149 lU. 486; 41 Am. St Bep. 304.

A further contention is that the information is insufficient,
because it fails to aver exclusive ownership of the label in ques-
tion in the organization known as the ''Cigar Makers' Interna-
tional Union of America.*' No such averment seems to be re-
quired under the law, which makes it a misdemeanor for any per-
son, persons, association or union of workingmen, or body cor-
porate or politic, who shall vend or keep for sale any goods, wares,
merchandise, compounds, or preparations upon which or in con-
nection with which any forged, imitation or counterfeit label
shall be placed, afllxed, or used, and intended to represent the said
goods, wares, merchandise as the genuine goods, wares, imple-
ments, merchandise of any other person or association or union
of workingmen. The information is in the language of the stat-
ute, and is well enough.

*®^ A final contention is that the state failed to prove guilty
knowledge upon the part of the defendant, that is, that at the
time he sold the box of cigars containing a counterfeit label, he
knew the label to be counterfeit. This contention is not without
merit. The record before us is barren of proof as to guilty
knowledge on the part of defendant, in the absence of which he
was not guilty of any offense under the law, which expressly pro-
vides that the label must have been used knowing it to be an
imitation or counterfeit. For failure of proof in this regard the
judgment is reversed and the cause remanded.

All of this division concur.

TRADEMARKS-LABEL OP TRADE UNION AS.— An unincor-
porated association known as the "Oigarmakera' International Union,
formed for promotini; 'Hhe naental, moral, and physical welfare of iti
tnembera," but winch is not a inannfactarer or dealer in cigars, canrot
acquire a trademark in a label adopted by it discriminating and diftln-
guishing between tbe work of union ana nonunion workmen: McVey
V. Bendel, 144 Pa. Sr. 235; 27 Am. St. Rep. 625. The Bamedoctrin*
was maintained in Cigarmakers' etc. Union v. Gonhairo, 40 Minn. 243:
12 Am. St. Rep. 726. A cigar label reading as follows: '^This oertifici
that the cigars contained in this box have, been made by a first-clasi
workman, a member of the Cigarmakers' International Union of Amer-
ica, an orizanisation opposed to inferior, rat-shop, coolie, prison^ or filthy
tenement-house workmflnship," is not unlawful and may be adopted:
Cohn V. People.149 III. 486: 41 Am. St. Rep. 304.

CONSTITUTIONAL LAW — CLASS LEGISLATION. — A *atnte
entitled "An act to protect associations, onions of workmen, and pe^



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May, 1895.] St. Joseph v. Levin. 577

«oni in their labels, trademarks, and forms of advertising'* does not
violate g constitutional provision prohibiting the passage of local or

rual laws and the granting oi special piiviieges: Oohn v. People. 149
486;41Am.8t. Kep. 305.



St. Joseph v. Levin.

[128 MTaBOVRl, 58S.]

CRIMINAL LAW. — A COMPLAINT FOR VIOLATING A
miMGIPAL ORDINANCE need not state the facts upon which
<t is founded with the same strictness required in an indictment.
Hence, a complaint charging defendant with refusing to exhibit
l)ooks kept by him aa a pawnbroker is sufficient, though it shows
the keeping of such book Inf erentially, rather than directly.

CONSTITUTIONAL LAW. — THE FIFTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES, providing that
00 person shall be compelled to be a witness against himself in any
criiuioal case, was not intended to limit the powers of the states in
respect to their own people.

CONSTITUTIONAL LAW — PAWNBROKERS.-A statute re-
<\nlTmf: all pawnbrokers to keep a book in which shall be entered a
<l«cription of all property pawned to, or purchased by, them, with
the names and residences of the persons by whom they were left,
the amount of the purchase money or the loan, the interest charged,
and the time when the loan falls due, is constitutional. It does
not Tiolate the provisions of the state constitution prohibiting the
compelling of any person to bear witness against himself.

MFNICIPAL CORPORATIONS — PAWNBROKERS, RIGHT
TO REGULATE.— Under a charter giving a city power to license,
fpffulate. tax, or suppress hawkers, peddlers, and pawnbrokers, no
one hag the right to pursue such an occupation within the limits of
such city without first obtaining a license. The business is a privl-
l^?e. not a right, and he who avails himself of it, and derives its
henefits, must bear Its burdens by conforming to the laws In force
fejnilating the occupation. Pawnbrokers may, therefore, by ordi-
nance, be required to keep books showing the details of their busi-
fiegg, and to exhibit them, when demanded, to the inspection of the



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 66 of 121)