it be deemed a tax upon the goods themselves, but is merely a levy made upon the capital invested (88). If the goods are brought from a foreign country (and not simply from another State) are still in the original package and have not become a part of the mass of domestic property within the State, they cannot be taxed (89).

However much the federal authority has curtailed the rights of States respecting interstate commerce, the subject of ports and harbors has been left largely to their control, upon the ground that the subject is not one requiring or admitting of national regulation. Hence State laws have been upheld which relate to pilotage fees (90), ferry franchises (91), the floating of logs (92), the regulation of harbors (93), the draws of bridges (94) and the quarantine of vessels (95).

often been presented to the courts, and the recognized doctrine is that, in the absence of congressional action, the State may authorize the building of a bridge over navigable streams lying entirely within its boundaries, and the fact that the stream connects with interstate waterways is immaterial (102).

In Caldwell v. American Bridge Company (103) the court say: "The commercial power of congress is exclusive of State authority only when the subjects upon which it is exerted are national in their character and admit and require uniformity of regulations affecting alike all the States; and that when the subjects within that power are local in their nature or operation or constitute mere aids to commerce the States may provide for their regulation and management until congress intervenes and supersedes their action." The same doctrine has been held to apply to the building of a bridge over an interstate stream which does not lie wholly within the State (104). But a State cannot regu

The State may levy wharfage duties, even on interstate vessels, and, if such taxes are not tonnage duties in disguise, but are imposed in good faith for wharfage purposes, they are valid, and the surplus of the funds thus obtained, after devoting a por-late the tolls of an interstate bridge (104a). tion to the repair and maintenance of the wharf, may be turned over to the general treasury of the State (96).

As to the instruments of commerce, the State

possesses a power of taxation which is not destroyed by the commerce clause of the Constitution, But, if the State travels beyond its just powers provided the tax is imposed upon the vessel, railand interferes directly with the loading or unload-road coach, etc., as property within the State and ing of interstate or international vessels, by the not as an instrument of traffic between the vessel's own crew, the regulation is unconstitu- States (105). tional (97). Finally, States retain the power to regulate the Respecting natural or artificial waterways lying fisheries within their territory by prohibiting seinwithin the State, the latter may pass laws regulating or dredging, if congress has failed to act (106). ing the improvement of such streams (98), and may exact tolls for the use of canals constructed by it (99).

So it may forbid vessels from anchoring in the streams of the State within certain prescribed limits (100), but it cannot, without the consent of congress, close an interstate highway, even though the stream lies wholly within the borders of the State (101).

The

in the control of interstate telegraph lines.
Cases have recently arisen involving State action
State has an unquestionable right to protect its
citizens from the danger of rotten or overloaded
poles standing along its highways (107), and
of the streets in the erection of poles (108).
municipalities may exact a rental fee for the use

But, if this rental is to an amount which grossly

The subject of regulating interstate bridges has exceeds the cost of inspection and other expenses

(88) Oliver Co. v. Speed, 87 Fed. Rep., 408.

(89) Brown v. Maryland, 12 Wheat., 425; Cook v. Pa., 97 U. S., 566; May v. New Orleans, 178 U. S., 496. (90) Cooley v. Board, 12 How., 299.

(91) Conway v. Taylor's Ex., 1 Black, 603.
(92) Lindsay Co. v. Mullen, 176 U. S., 126.
(93) County of Mobile v. Kimball, 102 U. S., 691.
(94) Escanaba Co. v. Chicago, 107 U. S., 678.
(95) Morgan Co. v. La., 118 U. S., 455.

(96) Transportation Co. v. Parkersburg, 107 U. S., 691; Ouachita Co. v. Aiken, 121 U. S., 444.

(97) Cuban Steamship Co. v. Fitzpatrick, 66 Fed. Rep., 63.

(98) Willson v. Blackbird Co., 2 Pet.. 245; Pound v. Turck, 95 U. S., 459; Lindsay Co. v. Mullen, 176 U. S., 126.

(99) Huse v. Glover, 113 U. S., 543.

(100) Green v. Steamer Helen, 1 Fed. Rep., 916. (101) Leovy v. U. S., 92 Fed. Rep., 344.

resulting to the city from the location of poles and

(102) The Passaic Bridges, 3 Wall. (U. S.), Appendix, 782; Gilman v. Phila., 3 Wall. (U. S.). 713; Caldwell v. American Bridge Co., 113 U. S., 205; Lake Shore Ry. Co. v. Ohio, 165 U. S., 365.

(103) Caldwell v. American Bridge Co., 113 U. S., 205, 210.

(104) Rhea v. Newport Co., 50 Fed. Rep., 16; Williamette Bridge Co. v. Hatch, 125 U. S., 1.

(104a) Covington Bridge Co. v. Ky., 154 U. S., 204. (105) Pullman Car Co. v. Nolan, 22 Fed. Rep., 276; McRea v. Bowers, 90 Fed. Rep., 360; Pickard v. Pullman Co., 117 U. S., 34; Tenn. v. Pullman Co., 117 U. S., 51.

(106) Corfield v. Corye, 114 Wash. C. C. Rep., 371; Manchester v. Mass., 139 U. S., 240.

11.

(107) Michigan Tel. Co. v. Charlotte, 93 Fed. Rep.,

(108) St. Louis v. W. U. Tel. Co., 148 U. S., 92.

wires along its thoroughfares, the regulation will subjects whch are pre-eminently suited to State be declared invalid (109).

As a demurrer admits not only those facts which are expressly alleged in the complaint, but everything which be implied by fair and reasonable intendment from its allegations (Marie V. Garrison, 83 N. Y., 14, 23), we are to (110) W. U. Tel. Co. v. Mayor of N. Y., 38 Fed. inquire whether the complaint, regarded from the

by the plaintiff, if indeed it can be said that there are any authoritative cases establishing her right to recover in this action." Nevertheless, that court reached the conclusion that plaintiff had a good cause of action against defendants, in that defendants had invaded what is called a "right of privacy" in other words, the right to be let alone. Mention of such a right is not to be found in Blackstone, Kent or any other of the great commentators upon the law, nor, so far as the learning of counsel or the courts in this case have been able to discover, does its existence seem to have been asserted prior to about the year 1890, when it was presented with attractiveness and no inconsiderable ability in the Harvard Law Review (vol. 4, page 193) in an article entitled, Rights of a Citizen - To His Reputation.”

The complaint alleges that the Franklin Mills which the complaint fixes at the sum of $15,000. Company, one of the defendants, was engaged in There is no precedent for such an action to be a general milling business and in the manufacture found in the decisions of this court; indeed the and sale of flour; that before the commencement learned judge who wrote the very able and interestof the action, without the knowledge or consenting opinion in the Appellate Division said, while of plaintiff, defendants, knowing that they had no upon the threshold of the discussion of the question: right or authority so to do, had obtained, made," It may be said in the first place that the theory printed, sold and circulated about 25,000 lithographic upon which this action is predicated is new, at prints, photographs and likenesses of plaintiff, made least in instance if not in principle, and that few in a manner particularly set up in the complaint; precedents can be found to sustain the claim made that upon the paper upon which the likenesses were printed and above the portrait there were printed, in large, plain letters, the words "Flour of the Family," and below the portrait in large capital letters "Franklin Mills Flour," and in the lower right-hand corner in smaller capital letters "Rochester, Folding Box Company, Rochester, N. Y.;" that upon the same sheet were other advertisements of the flour of the Franklin Mills Company; that those 25.000 likenesses of the plaintiff thus ornamented have been conspicuously posted and displayed in stores, warehouses, saloons and other public places; that they have been recognized by friends of the plaintiff and other people with the result that plaintiff has been greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this advertisement, and hier good name has been attacked, causing her great The so-called right of privacy is, as the phrase distress and suffering both in body and mind; that suggests, founded upon the claim that a man has she was made sick and suffered a severe nervous the right to pass through this world if he wills, withshock, was confined to her bed and compelled to out having his picture published, his business enteremploy a physician, because of these facts; that de- prises discussed, his sucessful experiments written fendants had continued to print, make, use, sell and up for the benefit of others, or his eccentricities circulate the said lithographs, and that by reason commented upon either in handbills, circulars, cataof the foregoing facts plaintiff had suffered dam-logues, periodicals or newspapers, and, necessarily, ages in the sum of $15.000. The complaint prays that the things which may not be written and pubthat defendants be enjoined from making, printing, lished of him must not be spoken of him by his publishing, circulating or using in any manner any neighbors, whether the comment be favorable or likenesses of plaintiff in any form whatever, for otherwise. While most persons would much prefer further relief (which it is not necessary to consider to have a good likeness of themselves appear in a here) and for damages. responsible periodical or leading newspaper rather than upon an advertising card or sheet, the doctrine which the courts are asked to create for this case would apply as well to the one publication as the other, for the principle which a court of equity is asked to assert in support of a recovery in this action is that the right of privacy exists and is enforceable in equity, and that the publication of that which purports to be a portrait of another person, even if obtained upon the street by an impertinent individual with a camera, will be restrained in equity on the ground that an individual has the right to prevent his features from becoming known to those outside of his circle of friends and acquaintances.

It will be observed that there is no complaint made that plaintiff was libeled by this publication of her portrait. The likeness is said to be a very good one, and one that her friends and acquaintances were able to recognize; indeed, her grievance is that a good portrait of her, and, therefore, one easily recognized, has been used to attract attention toward the paper, upon which defendant mill company's advertisements appear. Such publicity, which some find agreeable, is to plaintiff very distasteful, and thus, because of defendant's impertinence in using her picture without her consent for their own business purposes, she has been caused to suffer mental distress where others would have If such a principle be incorporated into the body appreciated the compliment to their beauty implied of the law through the instrumentality of a court in the selection of the picture for such purposes; of equity, the attempts to logically apply the prinbut, as it is distasteful to her, she seeks the aid of ciple will necessarily result not only in a vast the courts to enjoin a further circulation of the amount of litigation, but in litigation bordering upon lithographic prints containing her portrait made as the absurd, for the right of privacy, once established alleged in the complaint, and, as an incident thereto, as a legal doctrine, cannot be confined to the reto reimburse her for the damages to her feelings,straint of the publication of a likeness, but must

necessarily embrace as well the publication of a ing mass of precedents, this theory of a personal word-picture, a comment upon one's looks, conduct, conscience was abandoned; and 'the conscience,' domestic relations or habits. And were the right which is an element of the equitable jurisdiction, of privacy once legally asserted it would necessarily came to be regarded, and has so continued to the be held to include the same things if spoken instead present day, as a metaphorical term, designating the of printed, for one, as well as the other, invades the common standard of civil right and expediency right to be absolutely let alone. An insult would combined, based upon general principles and limited certainly be in violation of such a right and with by established doctrines to which the court appeals, many persons would more seriously wound the feel- and by which it tests the conduct and rights of suitings than would the publication of their picture. ors-a juridical and not a personal conscience" And so we might add to the list of things that are (Pomeroy's Eq. Jur., sec. 57). spoken and done day by day which seriously offend the sensibilities of good people to which the principle which the plaintiff seeks to have imbedded in the doctrine of the law would seem to apply. I have gone only far enough to barely suggest the vast field of litigation which would necessarily be opened up should this court hold that privacy exists as a legal right enforceable in equity by injunction, and by damages where they seem necessary to give complete relief.

The legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent. In such event no embarrassment would result to the general body of the law, for the rule would be applicable only to cases provided for by the statute. The courts, however, being without authority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by precedents created by an extreme and, therefore, unjustifiable application of an old principle.

The court below properly said that "while it may be true that the fact that no precedent can be found to sustain an action in any given case is cogent evidence that a principle does not exist upon which the right may be based, it is not the rule that the want of a precedent is a sufficient reason for turning the plaintiff out of court," provided - I think should be added - there can be found a clear and unequivocal principle of the common law which either directly or mediately governs it or which by analogy or parity of reasoning ought to govern it.

It is undoubtedly true that in the early days of chancery jurisdiction in England the chancellors were accustomed to deliver their judgments without regard to principles or precedents, and in that way the process of building up the system of equity went on, the chancellor disregarding absolutely many established principles of the common law. "In no other way," says Pomeroy, "could the system of equity jurisprudence have been commenced and continued so as to arrive at its present proportions" (Pomeroy's Eq. Jur., sec. 48). In their work the chancellors were guided not only by what they regarded as the eternal principles of absolute right, but also by their indivdual consciences, but after a time, when "the period of infancy was passed and an orderly system of equitable principles, doctrines and rules began to be developed out of the increas

The importance of observing the spirit of this rule cannot be overestimated, for, while justice in a given case may be worked out by a decision of the court according to the notions of right which govern the individual judge or body of judges comprising the court, the mischief which will finally result may be almost incalculable under our system, which makes a decision in one case a precedent for decisions in all future cases which are akin to it in the essential facts.

So in a case like the one before us, which is concededly new to this court, it is important that the court should have in mind the effect upon future litigation and upon the development of the law which would necessarily result from a step so far outside of the beaten paths of both common law and equity, assuming what I shall attempt to show in a moment - that the right of privacy as a legal doctrine enforceable in equity has not, down to this time, been established by decisions.

The history of the phrase "right of privacy" in this country seems to have begun in 1890, in a clever article in the Harvard Law Review - already referred to in which a number of English cases were analyzed, and, reasoning by analogy, the conclusion was reached that— notwithstanding the unanimity of the courts in resting their decisions upon property rights in cases where publication is prevented by injunction in reality such prevention was due to the necessity of affording protection to thoughts and sentiments expressed through the medium of writing, printing and the arts, which is like the right not to be assaulted or beaten; in other words, that the principle, actually involved though not always appreciated, was that of an inviolate personality, not that of private property.

This article brought forth a reply from the Northwestern Review (vol. 3, p. 1) urging that equity has no concern with the feelings of an individual or with considerations of moral fitness, except as the inconvenience or discomfort which the person may suffer is connected with the possession or enjoyment of property, and that the English authorities cited are consistent with such view. Those authorities are now to be examined in order that we may see whether they were intended to and did mark a departure from the established rule which had been enforced for generations; or, on the other hand, are entirely consistent with it.

The first case is Prince Albert v. Strange (1 Macn. & G., 25, 2 DeG. & S., 652). The queen and the

prince, having made etchings and drawings for their own amusement, decided to have copies struck off from the etched plates for presentation to friends and for their own use. The workman employed, however, printed some copies on his own account, which afterwards came into the hands of Strange, who purposed exhibiting them, and published a descriptive catalogue. Prince Albert applied for an injunction as to both exhibition and catalogue, and the vice-chancellor granted it, restraining defendant from publishing “at least by printing or writing, though not by copy or resemblance," a description of the etchings. An examination of the opinion of the vice-chancellor discloses that he found two reasons for granting the injunction, namely, that the property rights of Prince Albert had been infringed, and that there was a breach of trust by the workman in retaining some impressions for himself. The opinion contained no hint whatever of a right of privacy separate and distinct from the right of property.

reduced to writing, but granted the injunction on the ground that it was a breach of confidence on the part of a pupil who was admitted to hear the lectures to publish them, inasmuch as they were delivered for the information of the pupils, and not for sale and profit by them.

Mayall v. Highbey (1 H. & C., 188) was also a case where an injunction was granted and nominal damages awarded on the ground that plaintiff had a property right in certain photographic negatives which he had loaned to a person who subsequently became insolvent and whose assignee, without right, sold them to defendant, who printed copies from them which he published and sold.

In Duke of Queensbury v. Shebbeare (2 Eden, 329) the Earl of Clarendon delivered to one Gwynne an original manuscript of his father's, "Lord Clarendon's History." Gwynne's administrator afterwards sold it to Shebbeare, and the court upon the application of the personal representatives of Lord Clarendon, restrained its publication on the ground that they had a property right in the manuscript which it was not intended that Gwynne should have the benefit of by multiplying the number of copies in print for profit.

In not one of these cases, therefore, was it the basis of the decision that the defendant could be restrained from performing the act he was doing or threatening to do on the ground that the feelings of the plaintiff would be thereby injured; but, on the contrary, each decision was rested either upon the ground of breach of trust or that plaintiff had a property right in the subject of litigation which the court could protect.

Pollard v. Photographic Co. (L. R., 40 Ch. Div., 345) is certainly not an authority for granting an injunction on the ground of threatened injury to the feelings, although it is true, as stated in the opinion of the Appellate Division, that the court did say in the course of the discussion that the right to grant an injunction does not depend upon the existence of property; but the decision was, in fact, placed upon the ground that there was a breach of an implied contract. The facts, briefly stated, were that a photographer had been applied to by a woman to take her photograph, she ordering a certain number of copies, as is usual in such cases. The photographer made copies for himself and un- A more recent English case, decided in 1898, is dertook to exhibit them, and also sold copies to a more nearly in point and negatives the contention stationer, who used them as Christmas cards. Their that plaintiff may restrain an unauthorized publicaaction was restrained by the court on the ground tion which is offensive to him—namely, Dockrell that there was an implied contract not to use the. v. Dougall (78 L. T. R., 40). In that case defendnegative for any other purpose than to supply the ant, the owner of a medicine called "Sallyco," pubsitter with copies of it for a price. During the argu- lished the following substantially true but unaument of plaintiff's counsel, the court asked this thorized statement about plaintiff: "Dr. Morgan question: "Do you dispute that if the negative Dockrell, physician to St. John's Hospital, London, likeness were taken on the sly the person who took is prescribing Sallyco as an habitual drink. Dr. it might exhibit copies?" Counsel replied: "In Dockrell says nothing has done his gout so much that case there would be no consideration to support good." In the course of the opinion the court said, a contract." in effect, that plaintiff claimed to be entitled to an injunction restraining defendant from using plaintiff's name in his advertisements on the ground that an injunction should be granted in every such case where it can be shown that the use of the plaintiff's name is unauthorized and is calculated to injure him in his profession, and after saying that he did not think that this was right, he stated the proper rule to be that "In order that an injunction may issue to restrain a defendant from using a plaintiff's name the use of it must be such as to injure the plaintiff's reputation or property."

In Gee v. Pritchard (Swanst., 402) B attempted to print a private letter written him by A, and he was restrained on the ground that the property of that private letter remained in A, B having it only for the qualified purpose for which it was sent to him, the basis of the decision, therefore, being the idea of plaintiff's property in the thing published, as being the product of his mind, written by him and put into the hands of B for a limited purpose only. The same judge, Lord Eldon, also granted the injunction in Abernathy v. Hutchinson (3 L. J., Ch., 209), restraining the publication in the Lancet of lectures delivered at a hospital by the plaintiff. The court expressed a doubt in that case whether there could be property in lectures which had not been

None of the other English cases brought to our attention are claimed to have a direct bearing upon this question, and it seems to us very clear that they do not in anywise support the position of plaintiff.