UNITED STATES ". KOCH.
(ootrcwtt Court. E. D. M4.880Wl"t, E. D.
September 27, 1t1811.)
In 1870 congress passed a statute' pro\tiding for the registration of trade-marks, and in 1876 a statute imposing penalties "for trespass upon the rights obtained by such registry. The statute of 1870 haVing been declared unconstitutional. in 1881 a valid statute was enacted, touching the same subject. which did not re-enact the penal statute of 1876, lLnd made no referenoe thereto. Held, that the penal statute fell with that of 1870, and did not remain suspended; to become operative under the statute of 1881.
At Law. On demurrer to indictment. George D.&ynoldB, U. Atty., and Warwick M. Haugh, for plaintiff. John M. Hol'1M8, for defendant.
BREWER, J. This is an indictment under the trade-mark statutes of the United States. The indictment, was certified up from the district to this court, and to it there has been filed a demurrer. On the argument of that demurrer many questions were presented. I shall notice but one. ' The history of trade-mark legislation is this: In 1870 congress passed a statute providing for the registration of trade-marks,-a statute general inits operation. In 1876 it passed another statute imposing penalties for trespass upon rights by the registering Under those statutes indictments were found, and, Qn a certificate of division of opinion between the district and circui,t judges, cases came to thesu:preme court, and inwhat is knownns the Trade--Mark Gzse8, reported in 100 U. S. 82, the supreme court decided that the act of 1870 was beyond the, power of congress. It suggested in the opinion that under the "commerceclause,» perhaps, congress bad,the power to legislate with reference to trade-marks used in commerce between this country and foreign nations, between the state$, and with the Indian tribes. Immediately thereafter the act of 1881 was passed by congress, providing fodheregistering of trade-marks which might be used in foreign commerce and commerce with the Indian trihes: ,", It did not re-enact the penal statute Of 1876, and the act of 1881 contains no direct reference to that penal statute. ,' Now, the coiltention of the government" is that although the act of 1870 had no existence,-nev'er'had any; having beendeclnred beyond the power of congress,-and that although by reason of that fact the penal statute of 1876 had upon which it could operate, yet it stood as a valid enactment, suspended in operation until the act of 1881, providing for trade-mark registration, when it was vivified, and became an act imposing penalties for trespass upon rights given by the act of 188l. In the Trade-Mark CUBe8, Mr. Justice MILLER closed the opinion of the
rUNITED, STATJ!;S .,. KOCH.
court ,with eomereference to the penal statute of 1876, and his language' is this: "While we have,in onr references in this opin'ion to the trade-mark
lation of congress, had mainly in view the act of 1870, and the civil remedy which that act provides, it was because the criminal offenses described in the act of 1876 a.re., by their express terms, solely referable to frauds. counterfeits, and unlawful use of trade-marks which were registered under the provisions of the former act. If that act is, unconstitutional, so that the registration under it confers no lawful right, then the criminal enactment intended to protect that right falls with it. It
Now that language is general, comprehensive, and if taken in its ordinary meaning, and as respecting a matter then rightfully before and rightfully passed upon by the supreme court, it is a decision of that court that the penal act of 1876 fell with the civil act of 1870. But it is contended by counsel that the language does not require such interpretation; that all that was pending, and therefore all that was meant to be decided, was that the penal act had then no force,-nothing to act upon,-because the civil act which it was passed to uphold had no existence. Assuming that that is true, and that the question has never been considereu and decided by the supreme court as now presented,-for the act of 1881 had not then been passed, ---a, question arises whether a penal statute can be upheld denouncing trespass upon a merely statutory right, when there is in: existence no such statutory right, and when whether there shall ever be depends upon the will of succeeding congresses. It would not be doubted that if an act were passed giving a statutory right, and in the same act was a section imposing penalties for trespass thereupon, when the portion of the act giving the right fell, the whole statute would fall. And is the rule any different when the penal provisions are in an independent statute enacted by a subsequent legislature? Of course statutes having reference to the same subject-matter, though enacted at different times, are to be considered as in pariwLte1ia, and this is thus laid down by Dwarris in his work on Statutes, (Potter's Dwar. St.) p. 189: "It is therefore an established rule of law that all acts in pari materia are to be taken together as if they were one law; and they are directed to be compared in the construction of statutes, because they are considered as framed upon one system, and having one object in view;" citing certain . cases. "If one statute prohibit the doing a thing, and another statute be afterwards made whereby a forfeiture is inflicted upon the person doing that thing, both are considered as one statute." Stradling v. Morgan, 1 Plow. 206. That fits this case. Where the right is created by one statute, and the penalty inflicted by a subsequent, they are to be considered as one, statute. . But it is said that the first statute never had any existence. We are to look at this question as if there had been only the penal statute enacted. Now, if valid, whether such a penal statute has any operative force depends upon subsequent legislation. It cannot be doubted that congress may legislate with reference to the happening of future events. Its
legislation may be prospective, and oontingent upon future events. In case of a civil war congress might pass, doubtless, a valid enactment that upon the close of that war certain taxes should be collected. But the condition in this case is not something upon outside and probable occurrences; it is a condition depending entirely upon the will of succeeding congresses. There is no succession of time, no possible change in outward events that can bring the condition to pass. It is a condition that depends solely upon the succeeding congress.. If such legislation be not absolutely invalid, it is certainly very unfortunate. Further than that, while the act. of 1870 was a nullity, it must be assumed as a matter of fact that in framing the act of 1876 the penalties imposed were with reference to the terms of the statute of 1870. Can it be assumed that congress would have imposed such penalties upon trespasses upon the registration of trade-marks, if the broad, general, and comprehensive act of 1&70 had not been supposed to be in force? In this trademark case it was pressed upon the supreme court that, as congress had power to legislate in reference to trade-marks in limited cases, the court should uphold the statute as good in reference to such cases; but it properly answered that it could not assume that if congress had known that it had no general power, but only in limited cases, it would have passed any act. So, and with more force, must it be heId that if congress is legislating in respect to penalties upon the theory that it has general and comprehensive power, it cannot be assumed that it would impose the same penalties. provided it knew that it only had a limited and narrow power. Again, when the act of 1881 was passed, if congress had intended that penalty should be imposed for a trespass upon the rights conferred by that E'tatute, or if it had intended that the act of 1876 should be revivified and operate upon the act of 1881, it was very easy to say so. Its silence in this respect is cogent evidence that it did not understand or intend that the penal statute should be considered a part of present and valid law. And that assumption is strengthened by the fact that it had . before it for consideration this paE'sage from the opinion of the supreme court in which it is broadly stated that the act of 1876 had faIlen with the act of 1870. Whatever may be true as to the full meaning of that \tecision. or as to the general power of congress to impose penalties for trespasses upon rights having no existenee, it had before it the general affirmance by the court that the law of 1876 had fallen, and it must be assumed that if it meant that it should stand and be vivified. or that any penalties should be imposed for violations of the law of 1881, it would have so stated. These considerations convince me very strongly that the act of 1876 has, as the supreme court said, fallen with the act of 1870, and it is as much a dead letter as the act of 1870, and was 110t vivified or given operative force by the act of 1881. Of course in that view of the law the demurrer will be sustained. I have not considered the other questions raised by the demurrer. Expressing my opinion upon this one must not be taken as implying any dissent from the views expressed by my
AITCHESON ".THE ENDLESS CHAIN DREDGE.
Brother THAYER in the opinion heretofore filed by him. U. S. v. Braun, 39 Fed. Rep. 775. I have chosen to rest my opinion upon this question of the invalidity of the act of 1876, because, if that be true, there can be no remedy by changing the form of the indictment. There being no penal legislation by congress, there can be no indictment found.
CHAIN DREDGE fit ale
(DI.8trict Oourt, E. D. Virginia. October 17, 1889.)
A steam-dredge, which is a fioating scow fitted with appliances for deepening channels of navigation, is a sUbject of admiralty jurisdiction. By the eleventh article of the compact of 1785 between Maryland and Virginia it was provided that "process from the state of Virginia may be served on any I?art of the said rPotomac] river upon any person or property of any person not a citizen of Maryland, indebted to any citizen of Virginia, or charged with injury by him committed." Defendant was a citizen of Virginia, and the vessel seized was seized on that part of the Potomac river lying between the District of Columbia and that portion of Virginia contained within county, which had been originally ceded by Virginia to the United States as part of the District of Columbi!', and retroceded to Virginia by the United States in 1846. Held, that under the cession from Maryland to the United States of the District of Columbia, and by implied cession from the District of Columbia, admiralty process from the eastern district of Virginiamight be validly and effectively served on the Potomac river, where the vessel was seized. ' Materials and repairs were contracted to be furnished to a steam-dredge by libellants, which were actually furnished and paid for in chief lIart. The manufacture of the remaining materials was almost finished, and would have been ready for delivery, when work was suspended, and delivery not made, owing to a sale of the dredge without any provision for the acceptance of the materials or for the payment fl;lr their manufacture having been made. Held, that a lien attached to the dredge for the materials, notwithstanding they had not been delivered. Although the vessel libeled was a domestic vessel, built at and belonging to the port of Alexandria, she was liable to admiralty process for materials and ,repairs furnished in her home port. The general rule that vessels are not so liable in their home ports is qualified by exceptingtbe vessels of those states which by express legislation have given a right' of action in rem for materials and repairs furnisbed them at home, which right of action is conferred bv Code Va. 52963.
SAME-POTOMAC RIVER-SERVICE OJ!' PROCESS.
.. KARITIME LIENS-MATERIALS AND REPAIRs-NON-DELIVERY.
4. SAME-VESSEL IN HOME PORT.
In Admiralty. Libel for materials and repairs. Francis L. Smith and Edmund Burke, for libelants. Samuel G. Brent, for respondents. HUGHES, J. This isa libel in rem and in personam against a dredge called "The Endless Chain Dredge," now lying in the Potomac river, above the long bridge which crosses the Potomac from Washington city; and against "The River & Harbor Dredging Company," which built the dredge at the city of Alexandria, and was its owner, and as such entered into the contract which is the subject of this libel. "The River & Harbor Dredging Company" is a corporation of the state of Virginia. The libelants are citizens of Alexandria. The libel is for materials and ra..
pairs'furnil!hed and be furnished by the libelants to the Endless Oh8.in·Dredge. :,.Some'oHhe materials were actually furnished, and, paidfl)r in chief part...But most of the materials were oHorm and character peculiarly .suitable to the endless chain dredge, and of no value to any other: vessel. .:. The manufacture of these materials had been wellnigh completed, and.would have soon been ready for delivery; but work on them was suspended, and delivery of them not made, in conseqnence of a sale of the dredge. withoutll.ny provision for the acceptance of the materials mentioned, or for paying for their manufacture, having been made, either by thepul'cMsersqf tqe dredge. or. by it!;! first owners. "The River & Harbor Dredging Company." , The purchasers of the dredge had previotll! notice of the claim of the libelants. Such is the state of affairs out of which this libel has grown. The respondents resist the claim of the libelants ontbreegrounds, viz.; (1) That a dredge is 'not a vessel'liable to admiralty process; (2) that the materials libeled for were never delivered to the dredge, and that in conseqne'nce no lien' attached in favor of the libelants upon the vessel for them; (3) that the Potomac river, .in which the dredge lies, is wholly ",ithin the jurisdiction of the District of Columbia by cession from Maryland, the proprietary right of Maryland having always embraced the river to low-water mark on its southern bank. l.As to the question w,hethera steam-dredge, which is a floating scow fitted with steam appliances, buckets, and scoop, for deepening channels ofnavigation and like purposes, is a subject of admiralty jurisdiction, there have been repeated decisions in the United States and Great Britain in the affirmative; . See The Heiekiah Baldwin, 8 Ben. 556; The Alabama, 19 Fed. Rep. 544, affirmed on appeal, 22 Fed. Rep. 449; The Pioneer. SO Fed. Rep. 206;' Woodruff v. A Scow, ld. 269; and The Mac, L. R. 7 Prob. Div. 126. This court has also beld likewise, incidentally, in Maltby v. A Steam Derrick, 3 Hughes, 477; and Coasting ,00. v. The Oommodore, pOBt, 258, (which was a dredge case, decided by me at Norfolk.) 2. As to the question whether what is improperly called a" lien n in admiralty attaches to a vessel on a contract for materials and repairs which have not actually been delivered on board of her, there can be no doubt on principle that the liability exists. In admiralty the vessel is regarded as the contracting party. She is treated as a sentient being. She is sued in her own name, and process is awarded against her as the defendant who has made the contract on which the libel is brought. True, tbat the owner may also. on the same contract, be sued in personam in the same libel inwhichtne vessel is sued in remj but this remedy is only cumulative. 'rhesliit in chief is the libel against the vessel in T(mI" and the other proceeding is itlcidental. The vessel being the contractor, when she orders machinery, materials, and repairs, she puts it out of her power to refuse to' accept, or by a subsequent sale to obstruct the delivery of, the things contracted fo\,. It is her contract for the materials which binds her, without any reference to tbe deljvery or non-delivery of the articles bargained for. The right of a libelant to sue and
A!TCHESONf1. THE ENDLESS CHAIN DREDGBo
arrest the ship herself is the privilegWnn which admiralty law (which is a law oftheworld)gives to the person with whom she has contracted; and the privilegiumexists whether the conditions of an ordinary lien, under the local common or statute law, obtain or not. This privilegium to sue and arrest a vessel arises on her contracts whether the claim be ex contractu or ex delicto, whether it arises on contract or in tort. In the case against the dredge, the Commodore, last above cited, that dredge had been engaged in opening a channel to a basin of water at Cape Charles city, Va. She had used an anchor, which she had planted at the mouth of the channel while engaged in her work, and, after its completion, had negligently left the anchor at the bottom of the mouth of the channel, and had gone away to some other locality. The steamer Jane Moseley, in afterwards entering that channel, had been badly snagged and damaged by the anchor, and libeled the dredge for the tort. In that case I held that a dredge was subject to the admiralty jurisdiction, and was liable to arrest and decree for the tort. She would have been just as liable for a contract as for a tort. 3. As to the question whether admiralty process from the eastern district of Virginia may be validly and effectively served on the waters of the Potomachelow Georgetown, this right exists by cession from Maryland, and indirectly, for the purposes of the case at bar, by implied cession from the District of Columbia. I avail myself largely of the learned note of counsel for libelant in what I shall say 011 this subject. The claimants, in their answer, as matter of defense deny the Jurisdiction of the court, because the vessel arrested was seized upon that part of the Potomac river lying between the District of Columbia and the portion of Virginia contained within the boundaries of Alexandria county. This territory was ceded by Virginia to the United States, and formed a part of the District ofColumbia. On July 9,1846, the congress of the United States retroceded this territory to Virginia, by an act, of the first section of which the following is a copy:
"Be it enacted by the senate and house of representatives of the United States of America. in congress assembled, that, with the assent of the people of the county and town of Alexandria, to be ascertained as hereinafter prescribed, all of that portion of the District of Columbia ceded to the United States by the state of Virginia, ,and all the rights and jUrisdiction therewith ceded over the same, be, and the same are hereby, ceded and forever relinquished to the state of Virginia, in full and absolute right and jurisdiction, as well of soil as of persons residing or to reside thereon." 9 St. at Large. 35.
So that the oontention here is as to the jurisdiction over the waters of a public navigable river, lying between two sovereign powers. The title of the United States to the District of Columbia, as now constituted, rests, 'upon a grant and cession made by the state of Maryland. 'I.'he United States, as to such territory, did not and could not acquire any greater rightsjjurisdiction, or authority than were possessed by the state of Marylapd at the date of such grant and cession. Before the acquisitionbytheUnited States of theDistrict of Columbia, the sovereign states Maryland ent,ered into a solemn treaty and convention,