-oHllait' quesHon;' Itthas"been before two or three federal courts; and. two
or three state courts, and the same prinCiple has been enunciated ·in the supreme court of the United States in several cases; and, there·is :really to be said. Themomimt you find any act of!theJegislature, or any ordinance of a city, 'which prevents the free exchange of lawful articles of-commerce between the states, you find an act or ordinance which contravenes the cornmerceclause of the United' States constitiltion. It was urged that a partof these ordinances might stand,that part which simply provided'forinspection. Of course, iUs true, sometitnes, that a part of a statute may be void, imd another part valid; but when they are interlocked, so that one depends upon the other, there cCanbe no SepSirntiOn. Both musUsll. It, may be that in many cases thErinspection OHMd would be desirable,'and the food would be refused because it wasunwholeaome; buHtis. alSo clear, under these ordinances I that it cannot be approved,if1 itwasshliughtered more than a mile from ·thiljl city. It is a matter in which, this case, at least, the court canhot take the ordinance to pieces, and'saythereare,certain sections which shall stand. Theditrerent partsofthe ordinance or ordinances are in,. terlocked, and are .dependentone·u.pon the other; I have no, question but that they arain violatioDdf'the rights guarantied by the federal constitutioq, and especially its comrilerceclause. The petitioner will be discharged. ..j I; "
(ctrcUu Court, Jl). D.
· · . ,_
..' . .
November '. 1889.) .
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·<:lObTITOTtONJ.LLAw-LBGISU'rIVB POWBltS-PaOTBCTING IM1'ROVEMBNT!I ON MIBSIBoBIPPI.
Aot C011g. AU':' 11, 113138, § 5,(25 St.. tbe seoretary of war to m.ake "lIucll 1'11168 Ibid regUlations aamay 1Hi necessary to' proteot improvenients on tbe MiSSiBBiPPi1aiui. providing tbatant.,'viOla.tion of SUOh. rules Sh.all eon stitute. amisde. , meanOr, etc., is, not invalid as conter.ring 1I3gislative authoriT\l", on the secretary, as he is only authoriZed to make tbe ruleS, and It is the aot of ooniI'ess. WhiCh c1eo1are. the violation to be a misdemeanor. . .. ' . '
" C/w.s;Par14nge, ,Dist. Atty.
andE. W. Huntington, for defendant. Justice, and P ARD;JilE, J.
Justice. The question now .lor deciSIon arises upon defend. ant's ,demurrer to the indictment.against him, which,in-substance, al:leges that, under the 'provisions' of. section 5 of the act of congress, ap;proved Augua111,1888, (25 St. 424,) the secretary of war' was author. jzed to make such rules and regulations as might be necessary to protect the im.provements then being made on:the South pass of the Mississippi .river, and to,preventaay obstructions in said pass or injury to the work
STA.TES 17., BREEN. ,:
>.thenLbeing done by'the goyermnentupon the,improvemtmts being made; that the act further provided that iUlY violation of the rules and regulations so made should constitute a misdemeanor against the United States; 'and that upon conviction for such violation, in any court of the United States, having jurisdiction thereof, the defendant should be fined a sum not ex.ceeding$500, and be imprisoned not exceeding six months, at the discretion of the court. The indictment further charges that the secretary of war, in pursuance of the authority so vested in him, did make, among ,other rules and regulations, the following: "(1) Steam-vessels navigating the South pass are required to reduce their speed to, not ten miles per hOUl', and from the pilot's station, at Picayune to the sea end of the jetties, the speed shall not exceed six miles per hour." The indictment further alleges that after the making and promulgation of said Jillesand regulations; on the 4th day of November, 1888, within the jurisdiction of said court, the said Edward Breen unlawfully and willfully did violate the said rules and regulations, he (the said Edward being,and acting as pilot in and on board a certain steamer vessel, Ayshire, which vessel was then and there navigating the said South pass of said Mississippi river; and then and there having exercised the direction, management, and control of the navigation of said vessel, said Edward Breen did not then and there, as by said rules and regulations required, reduce the speed of said vessel to not exceeding 10 miles per hour, but did then and there navigate the said vessel at a greater rate of'speed than. 10 miles, contrary to the form of the statute of the United States of America in such case made and provided, and against the peace and dignity of the ,United States. ': It To the charges made in this indictment the defendant has interposed his general demurrer. The only groundtelied upon in behalf onhe defendant is, that the authority conferred by the act of congress on the of war to make and promulgate said rules and regulations is , legislative, and cannot, under the constitution of the United States, be, by act ofcong.ress, conferred upon the secretary of war, or anyone else, so as to make a violation thereof a orime against the United States. Whethetthisis so or not is the only question to be determined. If the law'empowered the secretary of war, by rule or regulation, to make a certain act criminal, and punishable as such, then this prosecution would 'not be maintainable; but it is not the rule' and regulation which the violation thereof a crime, and punishable. All that the secretary is to do is to make the rule and regulation. It is the 'act of congress 'which declll-res that the unlawful and willful violation of such rule and regulation, after it is promulgated,shall Qe held a misMm.eanor by the person violating the same, and that such personshalLbesentenced to pay a fine not exceeding $500, andshall ..suffer'iinprisonment not exceeding six mOIiths, as a penalty therefor. Numerous' a(!tsof congress have been pas8ooauthorizing the post1llaster general, and otht>r members of the executive department, to make rules and regulations for the: busi!lf'ss. to their resPectiV;e departj
ments,aoo declaring that,when made and promulgated,a willful and unlawful violation of them should be held a crime against the United States, .and the violators punished as presoribed in the act. The supreme court of the United States is authorized by aot of congress to adopt. certain rules for the government of the inferior courts, which, when made, have the force and effect of law as muoh as if such rules were directly enacted by congress, and approved by the president. The same effect is to be given to the rule and regulation made by the seoretary in this case. The act of congress denounces the violation of it as a crime, and presoribes the penalty. The criminality of the violation of the rule, and the liability of the offender to indictment and to punishment upon trial and conviction, result directly and exclusively from the legislation of congress. Numerous decisions made by the supreme court of the United States might be cited to maintain the position stated, but they are so well known to the profession that reference to them is deemed unnecessary. .The demurrer is therefore overruled.' .
J. I concur in the foregoing opinion and ruling.
, BOWLING et
(Q£rcuit CO'UR't, D. Connecticut. l"lovember 91,1889.) Complainants, who were manufacturing under patents Itaya whichconBisted of a stiffening blade having a sheet of rubber on each side, and. au outer layer of cloth over each sheet, and defendant, who was making twokmds "Bridgeport" and the" Self.Attaching, "-both of Which complainants claimed to be infringements on their patent, entered into an agreement by which complainants.licensed defendant to make the "Self-Attaching," provided he would not mak,El the" Bridg· port" stay i and defendant agreed to make no stays consillting of a steel, ",'layer of gutta-perena, and two outer layers of fabric. ,By a supplemental.agreement they confined themselves to the manufacture of the "Self-Att/loching" by the defendant, and the "Ypsilll.nti No.1" by complainants, the latter being a stay of the double layer kind; but it was agreed that oomplainants might put. a cheaper double layer stay on the market, provided they would furnish defendaI).t, ,at a certain price, the same quantity of such cheaper stay as should be sold by themselves. Complainants put a cheaper stay-"Ypsilanti No. 2"-on themarket"and.filled defendant's orders for the same, and afterwards\ against the protest of defendant, began t,o mak;e and sell a still cheaper stay, callen the" America. "of which 'tlley offered to let defendant have the same quantity as sold by them, at the same. price as \VIIS paid by their agent. Defendant refused to take thllm, and, claiming: that complainantshad broken their agreement in selling the cheaper stay, ..America. " to' the injury of the sale of "Ypsilanti No.2," he commenoed the manufacture:of the" Bridgeport,:" and also of a stay in which glue or paste was' substituted for gut,ta-percha.Held, , thllt this contract was not ill, restraint of tr",de. . " '. 9 BAME-BREAOlI-!NJUNCTION. '" Nor was there such material breach of .the contract by complainants as would justify refuSal of defendant to carry out his part of the cO,ntract; for which reason a temporary injuootion should be granted against the manufalltuJ.le by defendant of stay.s containing a .stiffening blade with one or tw. 0 layers of gutta-percha; and two . outer La}'ers Of fabric, but not against the manufacture of the stay in which PlISte or gluelilsubstittlted for gutta-percha.· '.'
CONTRACTS-RESTRAINT OJ' TRADE.
·In Equity., ·Motion for preliminllry injunotion.