the word "order" at all, norWllS the attention of the court in any ni'll' attracted to it. The ()'ft'etlse then under investigation was that of resistance to the marshal in the execution of Ii warrant in writing, and the langtlage of the judge must,";f course, be taken with reference 'fu the case befote the court. Thus considered, it is clear that that case involved. A case more like the present does not touch the point one, although not entirely 80, is that of U. B.v. Luhin8, 3 Wash. C. O. 335. There the defendant was indicted under this same statute for resisting the deputy-marshal in executing process issued by the judge, and not by the court. It. was contended that as the language of the statute is, "any mesne process," etc., "of the courts Of the United States," and'the process was not issued' by a court, but by a judge, there' was' no offense under the act. In reply to that contention for such limitation of the statutory language, Justice WASHINGTON said:
, II If this is the right construction of the law, the counsel forth!s defen!lant is entitledtoallthe merit the discovery; for snch a construction never'before was given or contended for. If suoh a resistance is not an offense tor which a person can be prosecnted, it is better that all the criminallilw be struck out from the statute book, as it Is there only to show the, debility of thegel1eral government..'" "'. '" If no protection is given by the general government to. their,offioers, it will require. no prophet to show what will be the result of such an l\bandonment of all the rights of the United States. 'This is not the. language would be necessary to be." Id',837,888.
After careful examination of the question, I am satisfied that the order involved in this case is embraced by the seotion upon which the indictment is founded, and therefore that the point made by counsel, whic? is, in;effect, t? a .vei'dict' of' acquittal upoP. opemng statement of the dIstrlCt attorney, should be, and therefore 1S, ovenuled.
(Df.Btrlct Oourt, D. M1mnesota. March 28, 1soo.)
LAw-INTEBSTATE COMHEBCE-PEDDLERs-..LICENSE. Ordinance 116 of the city of Minn., requiring all persons engaged in going from house to house, and selling or taking orders for any merohandise not of their own . to take, out a license therefor, and providing penalty of fine or imprisoJ;lmetJ.t for its Violation, iu so far as it applies to persons in the state making sales and taking orders for persons residing within another state, is repugnant to ,tbe COJ;lstitution of tl;J.e United Stl,l.t6S, giving congress the sole power to regulate, interstate commerce. " ,
At.Law. Petition for writ of habeas corpus. H. P. edmden, for petitioner: ' John M· .Greenriw.n, for City of Austin.
NELSON,J. A petition for It writ of habeas Corpus is' presented by G. F. Kimmel. The petitioner prays the court to .inquire into the
·.and.persons selling goodti at:re,tail by sample. "Theeommon council of the citY8f Austin do ordain: Se.C:tion 1; No person shall peddle, II< ** or t? or within the JiIDitjJ pf the city of Austill, and sell. dispose of., or offer for sale, by sample. at ret/lli. any goods. wares. merchan9.ise, or any of'*IlY description without having first qbtained, ,a I>rovided. thatnofbfngherein tained shall prtlclude any personprpe.. .sons who shall have pr<icured a special permitthflrefor as provided f9r. iQlileQ.:1hQf1his ordinanc,e.$.ec. 2. Any person or !;ItDIl all persons'wJl'q fr9ffi house to house. in any way or manner, for the pnrpose of carrying tAseI!. or exposing to sell, barter, or or to consumers. goods, wares. merchandise, notions, or other urtie1esof trade whatsoe\"er,'nottheir own manufacture. whether by sample or otherwise, and whethea:.thesaid goods. merchandise. notions, and otber articles of are delivered at the time of sale. or tl) are declared to be peddlers. and subject to the provisions ·of' this ,,"": . t '..
of his cqmmitment to, and imprisonment in, theoounty jail,tinder an ordinanQeofthe city of Austin,Mower county, in this district, which he alleges to be repugnant to the constitution of the United States. By the charter of the city of Austin, ,which was passed by the legislature of Minnesota" and approved Feln:uary, :1887, the common council is authorized,inter alia, "to license and regulate * * peddlers and seliling goods at retail by and, in terms, it provides that" the.power to regulate *. ** shall extend to,and be considered to include, * * * the power.to define who shall he considered * * * peddlers." The comUJqn POuncil, acting under this provision oLthe :city.cllarter, .passed the follqwing ordinance; and for an alleged violation of it the prisoner was committed to jail. The ordinance reads as I "Ordinance 116. An and for licensing hawkers.
Section 3 provides how a license shall be obtained, and the amount to be paid for a license or special permit. Sections 4 and 5 provide for the arrest, fine, or imprisonment, on conviction of violating the provisions of the ordinance. The writ of habeas corpus was issued, and proper proceedings have been takel?-:?-l return of the sheriff and traverse thereto. The followingd5tatementof facts raise$ the question to be determined: The petitioner, G. F. Kimmel, is a resident of the state of Nebraska, and traveled, onf60t fro.m house t()]iouse, offering to sell divers goods and merchandise by sample, within. the limits of the city of Austin, Mower county, at retail, and 24th day of March, 1890, agree to so sell toone Henry Purdy, atretail,a clock, for the sum of $8.50,.10 be delivered to him at a future date by W. A. Edwards, upon an order given by said Purdy to the petitioner; he (the petitioner) being an agent of the said W. A. Edwards, ,andautliorized to solicit said order, and contract for its delivery. That said W. A; Edwards was, a resident of the state of Iowa, and his house wllSlloc.ated ,at Des Moines, Iowa, from which such goods were to be shipped to the purchaser as well as the petitioner.' That none of the. goods, wares, and merchandise'were of the of said petitioner, no.r of iaid W. A. Edwards. That said
IN RE KIMMEl"
petitioner or W. A. Ed wards did not have a license or a permit to sell goods, wares, and merchandise within the limits of the city of Austin, or a license to peddle from house to house at retail, as provided by the ordinance above cited. The petitioner was arrested and brought before a justice of the peace of the city of Austin, and on conviction, and faiJ· ure to pay the fine imposed, was imprisoned. This case DlUst be governed by the decision announced in Robbins v. Taxitng-DiBt'l 120 U. S. 489,7 Sup. Ct. Rep. 592, and in Asher v. Texas, 128 U. 8.129, 9 Sup. Ct. 1. In the former case a citizen of Ohio was convicted for selling goods· by sample in the Shelby taxing-district, the raformerly Memphis, for an Ohio. firm, without having 'quired license, under a law of. the state of Tennessee. In the .latter case a citizen of New Orleans, in the state of Louisiana, an employe vf a rubber stamps, ete., in that city, was engaged in soliciting. tl't\de; by the use of samples, for his house, in the city of Houstin, of Texas. He waS arrested and convicted of a violation of the Texaslaw, which made it a misdemeanor to solicit trade by sampIe 1Vitho'at titking out alicense. It is not necessary to discuss the p.l,'iI?:ciples of constitutional construetion, or review the previous decisions of the suprerruroourt, which led to a: conclusion, meach of the ci+ed cases, that these license laws were in conflict with the constitution of the United States. It would be affectation on my part to do so. The discus· sion of the constitutional provision involved was exhaustive, and Mr. Justice BRADLEY, for the court, refers to previous of the supreme court fully establishing the principles which govern such cases. The decision, in brief, was that a state la", exacting tax to enapJe a,perso.n within the state to solicit orders and makesaJes there for Pt'IrBon residing within another state is repugnant to that clause of the constitution of the United States congress the power to regulate commerce a.mong the several states, and is void. It is' longed that thepetivoner is a peddler, within the express language of the dinance of the city declaring who are to be considered peddlers. The mere calling a person engaged in soliciting trade, by sample, for his employer, residing within another state, a "peddler,"does· not Ghange .the character of the The petitioner was carryjng on a traffic which the laws could impose no restraint. It therefore t that the ordinance of the city of Austin above cited is unconstitutional; Rnd the being restrained of his liberty, is entitled .to a and it is so ordered.
ReV. St. u. s. § 4929, prov.i6:ostltatalt1person · · *who;Ws'inveiite4 and pro, , or patterlJ, ,It It, or "'wdrlted i"OO, any article of man'l:(actUt'El, "may obtain a patent therefor as provided ',ill tire oaseot ilWenticlI:lli' or. liliseo"etiesl,r The claim of, delHgn: pa.tent' No, :}6,039, gran,ted for "a dl'l8ig.nior:. asewi.ug'-,mQ9hine 'o6$e. consisting ,of the rarsed panel,A,divul'ed into a series of 8ptaller I1anels,a, 'the,main patieli'.B, and fluted,or 'delldllll?cQmersj the' iJ&ueIsclellcrll>OO 'being on
-,; :the corneli,-and the pateDtia th6reforeitoid. ' : 'I-';;j'" ! ' ; ,",' .. 8.ulL" ' i i : , " " ' " ;.' "';', 'HI' ,,', ,': ") "',;,/ , , " I .' , ' , 'The first clatm of 14, .laas. to Nh'h\lll!oS 4J B''Ulii is. for'"the design for the brnam6iitatiou Of seWiDg'..maclhne cases! '." ,'It .. :,' 9UI;le Gothic top, 'OeMS, $,114tii f,ringedmil, 'C, "! : 'The , is for tlie ,by 1,',1, "on 'thll':tt6Iit :Of'l1he case. lator
,; ,! I;
":' thir"d, l,no1,'l-4e. oth of
1!40, 'Srd-wtNG: Om14'B CASES: ,,"','
.B8,th,.of ,the; tottegro,ing, ',ct&im8,','D1'1patSrl"t NO., 16,040, j as ureU'aa theclalm,8,f6r:We " J
, In" Equity..
"', . i1 \T61i1f G. 'EWtbtt, 'f6r complainant. :"
J ' ' ' , '
"-! , i
') ThIS' is:a. bin'
tfot' lie! deS'Jgn' for !f.0'.' 16,
case," duly 'lilid; patent- No." 16 ,grl1,riterl.' 'a:e Ifhe saine :S;UlI, "4esign for a s'ewill'g-maciliHie,"biise" and duly df three' alid bne-'h,alfY'eara. ; Patent "Nb. describes the 'design ltS'.f611b'Ws: ; , .. "."' })anel\' ,raised' panel Is <Ii Ipto series tbt lib.gular cu'tsor grooves elttandikg 'at '1'lgIJt angles,'aiid: spaced to, SUIt s\\htl ,transfer or ornamentias seemd'El8lmllls·to:pnt on:tbe saine; 'each panel being . ,em all.sidell by the angular catsi .,', ! . ' L,JTl1Wcllse hAs' fibted 6r vertically, or at right angles with the-baSe of 'the 'case; arid'the' IS: .. A. design for a sewing-machine case consisting of the raised panel, A, divided into a series of smaller panels, a, the main panel, B, and fluted or beaded corners, c, as shown and described." The second patent, No. 16,040, describes the design as consisting of a ·front and main panel to a sewing-machine case and a raised center panel j the center panel being surrounded by a border consisting of a series of beads and grooves, forming a convex and concave border, being separated from the center panel by a bevel cut! which is deeper than the concave