ATLANTIO MILLING CO. 1.'. ROBINSON.
missioner are entitled to be heard can be appropriately and conclusively .letermined. So far as the latter has acted conformably to regulations prescribed by this court he will be undoubtedly protected, because the administrative power to make the regulations is lodged with the court; and it may be well urged that it is immaterial whether his acts have received a subsequent sanction or were sanctioned in It is not necessary, nor is it expedient, to express any opinion now as to whether the shipping commissioner was justified in assuming from the action of my predecossors, prior to 1882, that he was authorized to retain his sons as deputies and pay them the salaries he has paid them. If a suit shall be brought, it may become pertinent to inquire whether such action was induced by misrepresentations or suppresflions of material facts on the part of the shipping commissioner which were intended and effectual to mislead. Neither is it intended by the present decision to preclude him from a full opportunity of reviewing and overturning the conclusions of fact which have been reached and expresded in the present proceeding. The statute authorizeo the court to remove from office any shipping commissioner "whom the court may have reason to believe dOdS not properly perform his duties." The permissive language in such a statute- is mandatory. Where power is devolved by statute upon a public body or officer to do an act which concerns the public interests, its exercise is an imperative duty whenever the occasion calls the power into activity. What my impression is respecting the official conduct of Mr. Duncan, upon the proofs and records used upon this motion, has been sufficiently indicated, but he is entitled to a full hearing, and should be given an opportunity, if he desires to retain the office, to show that he has properly performed its duties. An order will be entered denying the motion to pass the accounts for 1882, and directing the shipping commissioner to show cause before me, on the tenth day of May next, at 10 :30 A. M., why he should not be removed from office.
(Oircuit Oourt, S. D. New York. May 6,1884.)
TRADR-MARK-RIGHT TO THE SYMBOL INBEPARABLE FROM RIGHT TO SELL (JOMMODITY.
'fhe right to the exclusive use of a word or symbol as a trade-mark ia insl1parable from the right to make aud sell the commodity which it has been appropriated to designate.
SAME-MAY BE PECULIAR TO A FACTORY AND PASS WITH IT.
A trade-mark may be appropriated by a manufacturing company as well as an individual, and pass with the property to their successors.
3. S.um-MEAsURE OF DAMAGES.
The measure of da.mages is limited by the extent to which the unla.wful use of the design by the defendant has interfered with the sale of plaintiff's commodity.
Briesen et Steele, for complainant. A. v. Briesen, of counsel. L. H. Arnold, Jr., for defendant Robinson. Geo. H. Forster, for defendant Rowland. WALLACE, J. The proofs show that in 1861 the firm of Alexander H. Smith & Co., then the proprietor of the Atlantic mills, at St. Lonis,
Missouri, adopted the word "Champion," and employed it to distinguish a particular quality of flour made' and sold by them. From that time until the present it has been used as a trade-mark either by that firm or the several firms and corporations that became the proprietors of the property and business of the Atlantic mills. The flour to which it was applied was particularly adapted for the ern export trade, and became generally known and recognized. as the production of the Atlantic mills by the word which was thns used to designate it. The complainant has not made proof of any formal transfer by Alexander H. Smith & Co. to any of the sllcceeding proprietors of the Atlantic mills of the right to use the trade-mark; and if complainant has acquired that right it is because it passed upon the purchase of the mill property and business as an accessory thereof to each purchaser who became the proprietor of the premises, including the complainant, without any agreement respecting the trade-mark. The right to the exclusive use of a word or symbol as a trade-mark is inseparable from the right to make and sell the commodity which it has been appropriated to designate as the production or article of the proprietor. It may be abandoned if the business of theproprietor is abandoned. It may become identified with the place or establishment where the article is manufactured or sold, to which it has heen applied, so as to designate and characterize the article as the production of that place or establishment rather than of the proprietor. A trade-mark of this description is of no value to the original propriebecause he could not use it without deception, and therefore would not be protected in its exclusive enjoyment. Such a trade-mark would seem to be an incident to the business of the place or estabment to which it owes its origin, and without which it can have no independent existence. It should be deemed to pass with a transfer of the businesc because such an implication is consistent with the character of the transaction and the presumable intention of the parties. Dixon C1'Ucible Co. v Guggenheim, 3 Amer. Law T. 228; HudBon v. Osborne, 39 L. J. Ch. (N. S.) 79; Shipwright v. Clements, 19 Weekly Rep. 599. The defendant controverts the right of the complainant to the exclusive use of the word "Champion" as a trade-mark by the testimony
LAWLER V. BRETT.
-of two witnesses, to the effect that they used it or saw it used as a brand upon flour before it was adopted by Alexander H. Smith & Co. The testimony of the witness Potter fails to show the use of the word, in the instances to which he refers, prior to 1867, and is therefore valueless. The witness Reamey testifies that he used it for branding the flour of nine different firms as long ago as 1857. None of the persons for whom it was so used have been produced, although many ()f them were accessible. If Reamey's statement is correct it could have been readily corroborated. The failure to do so is significant. His statement is not supported by any extrinsic evidence, and is not deemed sufficiently reliable to defeat the complainant's right. Upon the accounting to ascertain damages, the fact is not to be ()verlooked that, in the instances in which the trade-mark has been used by the defendant in connection with the I].ames of other manufacturers than the complainant's, damages are measured by the extent to which the unlawful use of the word "Champion" .has interfered with the sale of their flour. Their right to an injunction is not affected because the appropriation of their trade-mark has been a limited one, and it is not incumbent on them to show that it has been copied in every particular. It is sufficient if his trade-mark has been copied to an extent calculated to mislead purchasers, and cause the article to which it has been applied pass as their article. The cases Gillott v. Esterbrook, 48 N. Y. 374; Newman v. Alvord, 51 N. Y. 189; Hier v. Abrahams, 82 N. Y. 519; and Walton v. Crowley, 3 BIatchf. 440, are instructive upon this point. . A decree is ordered for complainant.
(Oz"rcuit Oourt, S. D. 11)'IJ)a, O. D. October 31,1883.\
SALE-AcTION TO SET ASIDE-PAYMENT OF TAXES-SECTION CoDE 1873.
In an action to set aside a tax sale, when a' complainant fails to show that the taxes due on the property have been paid b)' him or his grantees, as reo qnired by section 897, Iowa Code 1873, he cannot recover.
SAME-TENDER EQUIVALENT TO PAYMENT.
A tender of the amount of a tax is equivalent to payment.
SAME-THE LAW DOES NOT REQUIRE AN IMPOSSIBLE THING.
Where the law requires that taxes shall he paid b)' a party before he can maintain an action to set aside a tax sale, but it is impossible for him to ascertain the amount. of the taxes, he need not make payment or tender before bringing his action, as the law will not require an impossible thing.
, Where both a statute and the rule of law require the payment of taxes due as a condition precedent to an attack upon a tax title, and the record discloses that the amount due can be readily ascertained, an action to set aside a. tax sale caimot be maintained without performa.nce of the condition.