The Albany Law Journal. ALBANY, JUNE 19, 1886. CURRENT TOPICS. the accused go. Perhaps this is a matter which in practice is corrected by the jury, for they must naturally listen with considerable aversion to an alleged confession narrated by a witness who has a pecuniary interest in procuring a conviction. The best way would be to have a body of detectives employed and paid by the government. But we should never shut out any alleged evidence of the commission of a crime consistent with the ordinary rules of evidence. It is best to leave all such matters to the judgment of the accepted tribunal. Nothing should be urged in these days to discourage public prosecutors from zeal. In fact, nearly every thing that is said is to the contrary effect, for very few public officers are so frequently and unjustly blamed, and urged to duty. The district attorney's office of the city of New York deserves high praise for its faithful and effective service in a number of recent prosecutions of influential criminals, such as Ward, Fish, Jaehne, Most and Buddensiek. The present administration of that office seems to be most excellent in every respect. THAT HAT was a vigorous onslaught of Mr. Spahn's against prosecuting attorneys and detectives that we published last week, and it undoubtedly echoes a good deal of the general feeling of the profession against detectives and decoys. Not that we altogether agree with our correspondent, nor that we believe that convictions of innocent men thus obtained are common; on the contrary we do not believe that a wrong conviction occurs once in fifty times, for the jury are proverbially suspicious of this sort of testimony. Mr. Spahn made a strong argument against the probability of the alleged confessions in the Maxwell and Jaehne cases; probably the prisoners' counsel argued very much in the same strain, but the convictions in both cases lead us to suppose that the twelve men saw more clearly than our correspondent could do at his distance, and with his necessarily imperfect information. It would be difficult to dispense with detec- A number of the Kansas City Times, containing tives. The Molly Maguire murderers, for example, a three-column puff of Chief Justice Horton, of would have gone unpunished if they had not been Kansas, is sent to us. The article is prefaced by a unearthed by a patient and courageous detective most libellous wood-cut portrait of the judge, repand pretended accomplice. We can agree to a cer- resenting him as a cross between a German protain extent with our correspondent's remarks upon fessor and a Russian nihilist. The article is signed the superfluous zeal of public prosecutors. Many of "Kicking Bird," but it would be more approprithem do act as if it was their business to convict at ately signed with the name of an animal that kicks all hazards. But our correspondent seems to for- with two legs rather than one. This remarkable get that there is generally an amount of zeal on the animal informs us that "every judge in a free poppart of the prisoner's counsel which would prove ular government, moulded upon the American overwhelming if the prosecuting attorney acted model, should be a politician. * No judge with the calmness and impartiality of a judicial who interprets law for the progress of the people, officer. It is the duty of the district attorney to and that their rights shall be maintained and estabmake the most of his evidence, as it is the privilege|lished, can be a successful preacher or jurist who is of the prisoners's counsel to make the least of it. In regard to circumstantial evidence it must be observed that while it may be true that convictions often occur which would not occur were it not for the alleged confessions, yet we have never known a case where the circumstances did not lend some basis of credit to the confessions. There certainly were suspicious circumstances in the Maxwell case, for example, to render the confession possibly credible. The human tongue is a very treacherous member, and sometimes seems to wag against the vital interests of its owner. But we have the jury to pronounce upon the credibility of such evidence, and this is one of the most valuable functions of the jury. In capital cases they lean strongly against conviction, and if in spite of this natural bias they convict, they are probably as nearly right in their judgment as human society can ever hope to be. One thing however we must admit, no man ought to be convicted of a felony solely on the testimony of a witness who has a reward at stake. In such cases, unless the circumstances alone would lead to a conviction, the safer way would be to let VOL, 33-No. 25. * * * * * not a politician, and can grasp the American idea advice, he will not do it. Let him not listen to the voice of the "journalistic" tempter, but let him stay where and what he is the learned, able and independent chief justice of a great and growing State. Let him not be seduced by the flattering fact that in 1879 he had eighty votes to eightysix for Mr. Ingalls for the office of United States senator. Let him recall our beloved Judge Folger's career, and don't. We have a peculiar pride and interest in him because he is a New Yorker -- from Orange county, "famous for its sweet butter and good lawyers," as the biographical Bird correctly says and should dislike to see him at the age of forty-nine forsaking his dignified and honorable post for the empty and ashen honors of party politics. was a case where it had been a person's duty to place a staging round the mouth of a shaft, and in consequence of an omission to perform that duty death was caused. Mr. Justice Hawkins said this was not a question whether the defendant might have been responsible, or whether there ought to be some legislative enactment to make the duty to stay by the escape compulsory, but he had to ask himself simply this: This being a charge of manslaughter according to the law as it now existed, was this death a direct consequence of the negli gent performance of a duty which the defendant owed to the deceased man? That was the diffi culty which stood in the way of the prosecution. In the case of a station-master who had negligently permitted a train to start on a single line of rails, and which came in collision with another train, whereby death was caused, no doubt the accident resulted from his negligence. In the present case however the accident which caused death was not due to any act of the defendant, but it was due to the fire and timidity of the deceased. The learned The superb edition of Alexander Hamilton's works, now being published by Messrs. Putnam of New York, has arrived at the seventh volume. This is one of the greatest general interest. It contains among other matter his speech on the independence of Vermont; an eulogium on Major-judge pointed out that it was not as if the fireGeneral Greene; a letter to Washington on "Presidential Etiquette," written at the president's request, in which he gives the advice, "never to remain long at table," and not to allow the members of the House of Representatives to have personal access to him. Hamilton's draft of the Farewell Address is given, with some interesting remarks by the editor on the extent to which this famous paper is to be credited to Hamilton. Mr. Lodge adopts Horace Binney's conclusion: "The thoughts and general idea are all Washington's; the form, the arrangement, and the method of arrangement are all Hamilton's. Two remarkable papers on the "Funding System," recently discovered in the Hamilton MSS. in Washington, and now just printed, add to the interest of the volume. But what will peculiarly commend the volume to lawyers is the immortal argument in the Croswell case on the law of libel. We commend these words for present reading: "It is only by the abuse of the forms of justice that we can be enslaved. An army can never do it." A mass of private correspondence addressed to distinguished men closes the volume. escape had been left in proper order, and directed a verdict of not guilty. The London Law Journal remarks: "To make a fireman absent from his post at a fire-escape liable for the death of a man who jumped out of the window of a house on fire some quarter of a mile away, as in the Beak street case, was a stretch of the law of manslaughter which Mr. Justice Hawkins properly declined to make. It does not necessarily follow that if the fireman had been at his post the fire-escape would have reached the fire earlier, and if it had, it does not follow that the potman would not have jumped out of the window all the same. The appearance of the escape close to him, and yet not within reach, may well have put the finishing touch to the unfortunate man's panic, and would have done so earlier as well as later. A crime cannot be based on speculations like these." NOTES OF CASES. be 'N Davis v. Davis, United States Circuit Court for Massachusetts, June 8, 1886, 27 Fed. Rep. 490, it is held the packing of soap in a box, with alternate red and yellow wrappers, so as to produce a representation of a trade-mark of the same combination of colors, is not an infringement. The court, Carpenter, J., said: "The trade-mark of the complainants is a representation, or if the word may allowed, a picture, of the top of an open box of soap. It seems entirely clear to me that such a trade-mark cannot be infringed by the use of a real box of soap, of whatever size or shape, or whatever may be the color or arrangement of the wrappers. It seems to me to be impossible to say that any physical object can be, in the nature of things, a colorable imitation of a picture or representation of that object. Still further, it is to be observed that there is a very great difference in appearance Un between a box of soap and a printed label representing the upper layer of soap therein contained. The most careless observer could not confound one with the other. I therefore conclude that there is no infringement by the use of the advertising box, unless, indeed, it be an infringement of the rights of the complainants to sell soap wrapped in red and yellow wrappers, arranged alternately in the box in which it is packed. But the complainants claim, in the second place, that their trade-mark is infringed by the sale of soap wrapped and arranged in boxes in the same manner used by them. doubtedly the terms of the statement are broad enough to cover the boxes of soap sold by respondents. The statement expressly says that 'bars or cakes of soap simply wrapped and arranged in a box, as described, is one method of producing our trade-mark.' But I am of opinion that the registration, in so far as it can be interpreted to cover the sale of boxes of soap, is entirely void, for the reason that the object or thing thus included in the description is not such a thing as can lawfully be registered as a trade-mark. A trade-mark is some arbitrary or representative device attached to or sold with merchandise, and serving to designate the origin or manufacture of that merchandise. I do not think that the merchandise itself, or any method of arranging the various packages, can be registered as a trade-mark. In the very nature of the case, as it seems to me, the trade-mark must be something other than, and separate from, the merchandise. It is not of course claimed that the colors used in the wrappers can be in themselves the subject of a trade-mark registration; nor is it claimed that the wrappers themselves constitute the trade-mark. The claim is that the trade-mark consists in the arrangement of the colors in the wrappers. This seems to me to be no less than a patent for an idea, under the guise of the registration of a trade-mark. I do not think that in any possible view the claim can be sustained." of those words as a trade-mark would have a tendency to give the plaintiff an unfair and hurtful monopoly in contravention of that rule of law which forbids the use of any thing as a trade-mark which would destroy competition. Canal Co. v. Clark, 13 Wall. 323. Then, in the second place, the appropriation of the word 'Astral'in one combination of words does not preclude its use in all other combinations. Such was the determination of the Supreme Court of Pennsylvania in respect to the word 'Samaritan,' as applied to compound medicines. Desmond's Appeal, 13 Wkly Notes Cas. 303. The plaintiff's trade-mark consists not of the word 'Astral' alone, nor yet of the two words 'Astral Oil.' The prefix 'Pratt's' is the distinguishing word in the plaintiff's combination, and in truth is indispensable; for according to the averment of the bill it is by the name of 'Pratt's Astral Oil' that the plaintiff's product is known in the markets of the world. Is it credible that purchasers possessing ordinary intelligence, and observing reasonable care, would confound 'Standard White Astral Oil' with Pratt's Astral Oil?' Moreover the plaintiff's packages of refined petroleum are designated by a peculiar brand of which the said name forms a part. Now, the brand used by the defendants is not in imitation of the plaintiff's, but essentially differs therefrom. Indeed, it seems to me to be quite impossible that any purchaser would mistake one for the other. The brand of the defendant company, so far from tending to mislead buyers, points directly and unequivocally to the origin of the contents of the packages." In Webster v. Rome, etc., R. Co., 40 Hun, 161, the action was brought to recover damages for personal injuries sustained while riding in a baggage car in one of the defendant's trains. The plaintiff left the passenger car and went into the baggage car to smoke, sitting on a trunk, and finding there the baggageman and another passenger. While he was there the conductor came in and had a conversation In Pratt Man'fg. Co. v. Astral Refining Co., United with him as to the train being late. The train ran States Circuit Court for western district of Penn- into a freight car, which had been blown from a sylvania, April 30, 1886, 27 Fed. Rep. 492, it is held side track upon the main track, and the plaintiff that "Standard White Astral Oil" is no infringe- was injured. The sleeping car of the train went ment of "Pratt's Astral Oil" as a trade-mark. The through the passenger car, killing eight persons court, Acheson, said: "It will be observed that the and injuring others. Held, that the question as to plaintiff in effect claims an exclusive property in whether the plaintiff was guilty of contributory the use of the words 'Astral Oil,' as applied to re- negligence in going into the baggage car was propfined petroleum; and also in the use of the word erly left to the jury. The court said: "The ques'Astral' as applied to the business of refining pe- tion whether the plaintiff was guilty of contributroleum. Can this pretension be sustained? Itory negligence is one of more difficulty. The statthink not. In the first place, I strongly incline to ute provides that 'in case any passenger on any the opinion that the word 'Astral' was without the railroad shall be injured while on the platform of a range of lawful appropriation as a trade-mark for car, or on a baggage, wood or freight car, in violarefined petroleum by reason of the fact that long tion of the printed regulations of the company, before it was employed by Charles Pratt, the appel- posted up at the time in a conspicuous place inside lation had been given to an oil-burning lamp well of its passenger cars then in the train, such comknown and in common use. Now, very naturally, pany shall not be liable for the injury, provided the public might associate the words 'Astral Oil' said company at the time furnished room inside its with the 'Astral Lamp,' and thus the exclusive use passenger cars sufficient for the proper accommoda called upon to determine, in some respects, a similar question to the one now under consideration. We then reached the conclusion that under the cir cumstances of that case the question of contributory negligence was one for the jury. In that case we regarded the evidence tending to establish con dence presented in this case. Whilst the conclusion in that case was reached with some hesitancy, we are still inclined to the opinion that it should be followed in this case, and that the question of contributory negligence was one properly submitted to the jury." MUNICIPAL CORPORATION—TAXATION-ULTRA SUPREME COURT OF THE UNITED STATES, SALT LAKE CITY V. HOLLISTER.* A municipal corporation cannot, any more than any other corporation or private person, escape the taxes due on its property, whether acquired legally or illegally; and it cannot make its want of legal authority to engage in a particular transaction or business a shelter from the taxation imposed by the government on such business of transaction, by whomsoever conducted. A PPEAL from the Supreme Court of the Territory of Utah. F. S. Richards, for appellant. Solicitor-General Goode, for appellee. tion of the passengers.' Laws of 1850, chap. 140, § 46. It does not appear that any printed regulations of the company were posted in its cars, and consequently the plaintiff cannot be said to have violated any of the regulations of the company in going into the baggage car. Ordinarily the baggage car is a place of greater danger than the pas-tributory negligence even stronger than the evisenger coach, but on this occasion it turned out otherwise, for the first sleeping car smashed entirely through the passenger coach, breaking it in two, and killing a number of the passengers. Undoubt edly a passenger who voluntarily rides in a baggage car, or other known place of danger, in violation of the known rules of the company, when there is room in the passenger coaches provided for his accommodation, and is injured in consequence of such violation, cannot recover damages therefor. 2 Wood's Railway Law, § 304, and authorities there cited. But in this case there were no rules of the company prohibiting passengers from riding in the baggage car; on the contrary, they appear to have been permitted to so ride by the agents of the company in charge of the train. Another passenger was riding in the baggage car at the time the plaintiff entered. The baggageman was there, and shortly after the conductor entered. The conductor conversed with the plaintiff, but does not appear to have warned him against riding in that car. * * * In Carroll v. New York and New Haven Railroad Co., 1 Duer, 571, it was held that a passenger injured by two trains of cars, running in opposite directions, coming in collision, is entitled to recover, although at the time of the collision he was in an apartment of the baggage car, notwithstanding the fact that he knew the position to be much enue for the district of Utah from the city for a spec more dangerous in the event of a collision than a ial tax upon spirits alleged to have been distilled by seat in the passenger car, and that too though the said city, and not deposited in the bonded warehouse result may have demonstrated that he could not of the United States by plaintiff as required by law. have been injured if he had been in a passenger car. Plaintiff alleges that under threat of selling sufficient This case is very much in point, and so far as we property of the city to pay said tax, it paid the sum demanded under protest, appealed to the commishave been able to discover, it has not been criticised sioner of internal revenue, who failed and neglected or overruled, but is recognized as correct in the to make any decision or to refund the money, and case of Eaton v. Delaware, Lackawanna and West- after six months' waiting this suit was brought. ern R. R. Co., 57 N. Y. 396, and by Wood in his To the petition the defendant made the following recent work on Railway Law in section 304, supra. titled cause, O. J. Hollister, and for answer to the "Now comes the defendant in the above enIn Nolan v. Brooklyn City and Newtown Railroad plaintiff's complaint admits that the plaintiff is a pubCo., 87 N. Y. 63, it is stated, in the opinion of the lic municipal corporation, created and organized uuder court, that it is settled that independent of the and by virtue of the laws of the Territory of Utah, and it is not, even in that it has continued to be such a corporation since its the case of steam cars, negligence per se for a pasorganization in February, 1850; and that the defendant was at the time mentioned, and as alleged in senger to stand on the front platform of a moving plaintiff's complaint, and still is, the acting United car.' In Werle v. Long Island Railroad Co., 98 N. States collector of internal revenue for the district of Y. 650, it was held that 'the fact that a passenger, Utah. Defendant admits that in June, A. D. 1876, the failing to find a seat, and having none pointed out United States Commissioner of internal revenue set to him by any employee of the company, takes a down to and assessed against the plaintiff a gallon tax of $10,760 upon spirits distilled by said plaintiff at vaposition on the platform of the car where other pas-rious times between the 2d day of March, A. D. 1861, sengers are riding, and without objection from any and the 26th day of August, A. D. 1868, and not depos employee, and is thrown from the car by a sudden ited in the bonded warehouse of the United States by lurch given it by the great and increased speed with which the train is run when turning a curve, does not, as matter of law, establish contributory negligence.' In Goodrich v. Pennsylvania and New York Canal and Railroad Co., 29 Hun, 50, we were mandate of the statute * * * MILLER, J. This suit was instituted by the city of Salt Lake to recover of Hollister the sum of $12,057.75, illegally exacted by him as collector of internal rev answer: the plaintiff, as required by law, but denies that said gallon tax was illegally or erroneously set down to or assessed against the plaintiff by said commissioner of internal revenue, and avers that the plaintiff, during all the time for which * Appearing in 6 Sup. Ct. Rep 1055. said assessment was made was actually engaged in distilling, producing and dealing in as distiller said spirits so assessed; and said assessment of said gallon tax was made upon distilled spirits actually produced by the plaintiff, and upon which plaintiff had not paid the gallon tax required by law; said spirits not having been deposited in the bonded warehouse of the United States by the plaintiff as required by law, but taken from said distillery by the plaintiff, after having been produced and distilled as aforesaid, and sold by said plaintiff, and the proceeds of said sale turned into the treasury of the plaintiff. Said plaintiff during all the time it operated said distillery, and especially from said 2d day of March, 1867, to said 26th day of August, 1868, was distilling and producing spirits as aforesaid, and receiving and appropriating the benefit arising therefrom. Defendant further alleges that the plaintiff, during the time mentioned in plaintiff's complaint, regularly reported and paid to the collector of internal revenue of the United States the gallon tax due upon a quantity of spirits distilled and produced by plaintiff; but that plaintiff neglected to report all of the spirits it actually produced and distilled, and for and upon which the said gallon tax was due and owing to the United States; and that the tax so assessed as aforesaid is the tax due upon the spirits produced and distilled in excess of the amount so reported by said plaintiff, and upon which no tax was ever assessed and collected up to the time of the payment mentioned in plaintiff's complaint, and hereinafter stated. Defendant, answering, admits that the list containing the gallon tax assessed by the commissioner of internal revenue of the United States was placed in the hands of this defendant as collector of internal revenue. And defendant alleges that said plaintiff having engaged in the business of distilling and producing spirits as aforesaid, and said tax having been assessed by the commissioner of internal revenue as aforesaid, and placed in the hands of the defendant as collector of internal revenue for collection, it became and was his duty as such collector to collect said tax. Defendant denies that he knew that said gallon tax so assessed as aforesaid was erroneous and illegal, and avers that said tax was legal and correct, and was assessed and collected because plaintiff was liable to said tax. Defendant admits that he did threaten to seize and sell the property of plaintiff to pay said tax, as alleged by plaintiff; and that the plaintiff on the 14th day of August, 1877, paid the defendant the amount of the gallon tax, with interest which had accrued thereon from the date of said assessment; but for what reason plaintiff paid defendant said gallon tax defendant is not advised, and upon that subject has no knowledge, information or belief, and therefore cannot answer." A demurrer to the answer was overruled, and the plaintiff refusing to plead further, a judgment was rendered for the defendant, which was affirmed on appeal to the Supreme Court of the Territory. It will be perceived that this demurrer admitted that the plaintiff, the city of Salt Lake, had been for a period of about eighteen months engaged in the business of distilling and producing spirits, and selling the same and placing the proceeds of the sale in its treasury; that during this time the plaintiff made regular reports as to the quantity produced, and paid the tax on the amount so reported; but that while it thus operated said distillery it failed and neglected to report all the spirits which it produced, and the tax assessed and collected, and which the present suit is brought to recover back, was for spirits of which no report was made. The commissioner of internal revenue having assessed plaintiff for these distilled spirits, and placed the assessment in the hands of defendant, he, as a means of collecting the tax, did threaten to seize and sell property of plaintiff, whereupon plaintiff paid the sum mentioned. So. It would seem that this unqualified admission that the city was actually engaged in the business of distilling spirits liable to taxation, and replenishing her treasury with the profits arising from the operation, ought to be a justification of the officer who collected the tax due for the spirits so distilled; and this argument is all the stronger since the city acknowledged its liability as a distiller by paying voluntarily the tax due on the larger part of the spirits produced. But while the city does not deny the actual fact of distillation, and of fraudulent returns by it, it denies the whole affair by argument. It says, that though it is very true the city did distil spirits, did sell them, and did receive the money into its treasury, it cannot be held liable for this because it had no legal power to do Its want of corporate authority to engage in distilling is to be received as conclusive evidence that it did not do so, while by the pleading it is admitted that it did. Because there was no statute which authorized it as a city of Utah to distil spirits, it could engage in this profitable business to any extent without paying the taxes which the laws of the United States require of every one else who did the same thing. If the Territory of Utah had added to its other corporate powers that of making and selling distilled spirits, then the city would be liable to the tax; but because it had no such power by law, it could do it without any liability for the tax to the United States, or to any one else. It would be a fine thing, if this argument is good, for all distillers to organize into milling corporations to make flour, and proceed to the more profitable business of distilling spirits, which would be unauthorized by their charters or articles of incorporation; for they would thus escape taxation, and ruin all competitors. It is said that the acts done are not the acts of the city, but of its officers or agents, who undertook to do them in its name. This would be a pleasant farce to be enacted by irresponsible parties, who give no bond, who have no property to respond to civil or criminal suits, who make no profit out of it, while the city grows rich in the performance. It is to be taken as a fair inference on this demurrer that all that the city might have done was done in establishing this business. The officers, who it is said did this thing, must be supposed to have been properly appointed or elected. Resolutions or ordinances of the governing body of the city directing the establishment of the distillery, and furnishing money to buy the plant, must be supposed to have been passed in the usual mode. Every thing must have been done under the same rules, and by the same men, as if it were a hospital or a town hall. If the demurrer had not admitted this, it could no doubt have been proved on an issue denying it. But the argument is unsound that whatever is done by a corporation in excess of the corporate powers, as defined by its charter, is as though it was not done at all. A railroad company authorized to acquire a right of way by such exercise of the right of eminent domain as the law prescribes, which undertakes to and does seize upon and invade, by its officers and servants, the land of a citizen, makes no compensation, and takes no steps for the appropriation of it, is a naked trespasser, and can be made responsible for the tort. It had no authority to take the man's land or to invade his premises. But if the governing board had directed the act, the corporation could be sued for the tort in an action of ejectment, or in trespass, or on an implied assumpsit for the value of the land. A plea of ultra vires in this case would be no defense. The truth is that with the great increase in corporations in very recent times, and in their extension to nearly all the business transactions of life, it has been found nec |