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be shipped or forwarded from one State to another, and then put up for sale.” On the other hand, in the case of Almy v. The State of California, 24 How., 169, it was held that a stamp duty imposed by the legislature of California on bills of lading for gold and silver transported from any place in that State to another out of the State was forbidden by the Constitution of the United States, because such instruments were a necessity to the transaction of commerce, and the duty was a tax upon exports.

The question, therefore, whether the trade-mark bears such a relation to commerce in general terms as to bring it within Congressional control, when used or applied to the classes of commerce which fall within that control, is one which, in the present ease, we propose to leave undecided. We adopt this course because when this court is called on in the course of the administration of the law to consider whether an act of Congress, or any other department of the government, is within the constitutional authority of that department, a dne respect for a co-ordinate branch of the government requires that we shall decide that it has transcended its powers only when that is so plain that we cannot avoid the duty.

In such cases it is manifestly the dictate of wisdom and judicial propriety to decide no more than is necessary to the case in hand. That such has been the uniform course of this court in regard to the statutes passed by Congress will readily appear to any one who will consider the vast amount of argument presented to us assailing such statutes as unconstitutional, and will count, as he may do on his fingers, the instances in which this court has declared an act of Congress void for want of constitutional power.

Governed by this view of our duty, we proceed to remark that a glance at the commerce clause of the Constitution discloses at once what has been often the subject of comment in this court and out of it, that the power of regulation there conferred on Congress is limited to commerce with foreign nations, commerce among the States, and commerce with the Indian tribes. And while bearing in mind the liberal construction that commerce with foreign nations means commerce between the citizens of the United States and the citizens and subjects of foreign nations, and commerce among the States means commerce between the individual citizens of different States, there still remains a very large amount of commerce, perhaps the largest, which, being trade or traffic between citizens of the same State, is beyond the control of Congress.

When, therefore, Congress undertakes to enact a law which can only be valid as a regulation of conımerce, it is reasonable to expect to find on the face of the statute, or from its essential nature, that it is a regulation of commerce with foreign nations, among the several States, and with the Indian tribes. If it is not so limited, it is in excess of the power of Congress. If its main purpose be to establish a regulation applicable to all trade, to commerce at all points, especially if it is apparent that it is designed to govern the commerce wholly between citizens of the same State, it is obviously the exercise of a power not confided to Congress.

We find no recognition of this principle in the chapter on irade-marks in the Revised Statutes. We would naturally look for this in the description of the class of persons who are entitled to register a trade-mark, or in reference to the goods to which the trade-mark should be applied. If, for instance, it described persons engaged in a commerce between the different States, and related to its use in such commerce, it would be evident that Congress believed it was acting under the clause of the Constitution which authorizes it to regulate commerce among the States. So if, when the trade mark has been registered, Congress had protected its use on goods sold by a citizen of one State 10 another, or by a citizen of a foreign State to a citizen of the United States, it would be seen that Congress was at least intending to exercise the power of regulation conferred by that clause of the Constitution. But no such idea is found or suggested in this statute. Its language is: “Any person or firm domiciled in the United States, and any corporation created by the l'nited States, or of any State or Territory thereof," or any person residing in a foreign country which by treaty or convention affords similar privileges to our citizens, may by registration obtain protection for his trade-mark. Here is no requirement that such person shall be engaged in the kind of commerce which Congress is authorized to regulate. It is a general declaration that anybody in the United States, and anybody in any other country which permits us to do the like, may, by registering a trade-mark, have it fully protected. So, while the person registering is required to furnish “a statement of the class of merchandise, and the particular description of the goods comprised in such class, by which the traile-mark has been or is intended to be appropriated,” there is no hint that it is goods to be transported from one State to another, or between the United States and foreign countries. Section 4939 is intended to impose some restriction upon the Commissioner of Patents in the matter of registration, but no limitation is suggested in regard to persons or property engaged in the different classes of commerce mentioned in the Constitution. When we come to the remedies provided by the act for infringement of the rights of the owner of the registered trade-mark, there is no restriction of the right of action, or suit, to a case of trade-mark used in foreign or inter-State commerce.

It is, therefore, manifest that no such distinction is found in the act, but that its broad purpose was to establish a universal system of trade-mark registration, for the benefit of all who had already used a trade-mark, or who wished to adopt one in the future, without regard to the character of the trade to which it was to be applied or the locality of the owner, with the solitary exception that those who resided in foreign countries which extended no such privileges to us were excluded from them here.

It has been suggested that if Congress has power to regulate trade-marks used in commerce with foreign nations and among the several States, these statutes shall be held valid in that class of cases, if no further. To this there are two objections: First, the indictments in these cases do not show that the trade-marks which are wrongfully used were trade-marks used in that kind of commerce. Secondly, while it may be true that when one part of a statute is valid and constitutional and another part is unconstitutional and void, the court may enforce the valid part where they are distinctly separable so that each can stand alone; it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body. This precise point was decided in the case of the United States v. Rees (97 U. S. R., 221). In that case Congress had passed a statute punishing election officers who should refuse to any person lawfully entitled to do so the right to cast his vote at an election. This court was of the opinion that, as regarded the section of the statute then under consideration, Congress could only punish such denial when it was on account of race, color, or previous condition of servitude.

It was urged, however, that the more general description of the offense included the more limited one, and that the section was valid where such was in fact the cause of denial. But the court said, through the Chief Justice: “We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to scparate that which is constitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting words that are not there now. Each of the sections must stand as a whole or fall together. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. * * * To limnit this statute as now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.” If we should, in the case before us, undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do, namely, make a trade-mark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances under the act of Congress and in others under State law. (Cooley on Cons. Limitation, 178, 179; Commonwealth v. Hitchingg, 5 Gray, 485.)

In what we have here said we wish to be understood as leaving the whole question of the treaty-making power of the general government over trade-marks, and the duty of Congress to pass any laws necessary to carry such treaties into effect, untouched.

While we have, in our references in this opinion to the trade-mark legislation of Congress, had mainly in view the act of 1870. and the civil remedy which that act provided, it was because the criminal ottenses described in the act of 1876 are, by their express terms, solely referable to frauds, counterfeits, and unlawful use of trade-marks which have been 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 enactinent intended to protect that right falls with it.

The questions in each of these cases, being an inquiry whether these statutes can be upheld in whole or in part as valid and constitutional, must be answered in the negative, and it will be so certified to the proper circuit courts.

No. 31.

Mr. Kasson to Mr. Evarts.

No. 271.]

LEGATION OF THE UNITED STATES, Vienna, December 24, 1879. (Received January 12, 1880.) SIR: In acknowledging your No. 138, with the inclosed copy of the application made in behalf of the Hebrews of Roumania, I beg to ad

vise you of the principles of my action on the same subject in the case of Servia.

According to the information of this legation, there are some inaccuracies of statement in the memorandum submitted to the Department in behalf of the “Union of American Hebrew Congregations." It is not necessary, however, here to review that paper. I will only say that Italy is already satisfied with the action of Roumania, and has by her plenipotentiary recognized Roumanian independence. Austria had previously done so. France is about to do the same. Germany is held back by altogether different considerations.

Knowing the sympathies and interest of my government in the condition of this race in the principalities, I have followed the progress of diplomatic intervention and of local legislation with constant attention. I am convinced that, with the exception of always possible isolated instances of injustice, such progress has been made that the only branch of civil rights which now gives just cause of anxiety is that relating to the extent and the mode of granting to the Hebrews the rights of citizenship. It would appear that the equal protection of person and property under the laws has been assured. The principle of naturalization embraces them in common with other races, without distinction. Its practical application is a question so peculiarly pertaining to interior administration as to render foreign judgment upon it almost inadmissible.

It has been my intention to follow in negotiations with Roumania the text of my propositions to Servia. These were intended to secure to American citizens, of all faiths, protection of person and of property, equally with that given to natives, full rights of trade, and full liberty for the exercise by them of the rights of religious faith and of public worship. The stipulations on the latter point follow the language of the article relating thereto in the Treaty of Berlin. Copies of the same are inclosed.

I bave, &c.,

JOHN A. KASSON.

(Inclosure in No. 271.]

Art. IV. There shall be entire liberty of commerce between the persons belonging to the jurisdiction of the principality of Servia and those of the United States of America.

The citizens of the contracting states may, while conforming to the laws of the country, freely reside in all parts of the territory of the other, may traverse this territory, or establish themselves there in business. They shall enjoy in all that concerns their person and property the same security enjoyed by the natives.

They may exercise their industry or their commerce, wholesale or retail, in every part, city, port, or place whatever of the territory of the other state, and to this end they may lease the necessary locations, houses, and stores,

The citizens of Servia in the United States, and the citizens of the United States in Servia, whether they establish themselves or take up temporary residence, shall not be subjected, either in respect to person or property, or in the exercise of their commerce or their industry, to the payment of taxes, general or local, of imposts, or of whatever other impositions or charges, higher than those which are or may hereafter be collected from the natives themselves.

ART. VI. The liberty of religious faith and the open exercise of their worship shall be assured to the persons belonging to the jurisdiction of each of the contracting states in the territory of the other, and no restraint shall be imposed either upon the ecclesiastical organization of the different communions or upon their relations with their spiritual chiefs.

No. 32.

Mr. Kasson to Mr. Evarts.

No. 282.]

LEGATION OF THE UNITED STATES,

Vienna, January 17, 1880. (Received February 2.) SIR: In continuation of the subject of my No. 269, I have now to ad. vise the receipt, from the foreign office at Vienna, of final replies to the interrogatories which I addressed to it in furtherance of the wishes of the Mississippi River Commission, as represented by Captain Eads upon the occasion of his recent tour of investigation in Eastern Europe.

Herewith are full copies of the correspondence. I send that of the Austro-Hungarian Government only in the translations which were made in this legation. As the originals do not relate to any question between the two governments, it does not appear necessary, or even useful, to transmit for the commission copies of the German text.

From these replies to my request for information, it appears that this government began the systematic improvement of the Austrian Dan. ube-3773 kilometers in length in the year 1850.

The plan was to cut off the lateral arms of the river and confine the stream within embankments, giving to the river “ an equal normal breadth, according to its nature.” It will require many years yet to complete the work proposed.

Upon the Austrian Danube have been already expended 45,350,000 florins. But of this sum, 30,600,000 florins have been devoted to the Vienna stretch of the river, of which sum only one-third is furnished by the general government; one-third by the provincial and one-third by the city governments, as having a more special interest in the local improvements. It is estimated that at least 15,000,000 more will be required in the prosecution of the work along the Danube.

Upon the affluents of the Austrian Danube, in the same period, have been expended 4,370,000 florins.

The work of systematic improvement of the Hungarian Danube was commenced in the year 1871, upon the stretch of river at Buda Pesth. Here and elsewhere have already been expended 13,300,000 florins by the Hungarian Government; and the expenditures are to be continued on the plan already adopted—of closing lateral channels and the erection of embankments—for which 44,000,000 florins additional are esti

mated.

Upon the Hungarian affluents of the Danube have been expended already over 9,930,000 florins, chiefly to prevent inundations. The effect of these expenditures towards the reduction of rates of transportation in both parts of the empire appears as yet to be conjectural. While they have given increased facilities to commerce, it would seem that wherever rates have been lowered it is rather attributable to railroad competition than to the improvements of river navigation. In connection with this subject is also to be considered the fact that a wealthy chartered corporation almost exclusively controls the navigation of the Danube.

Begging that the Department will cause the commission, through Captain Eads, to be advised of the reception of these papersI have, &c.,

JOHN A. KASSON.

(Inclosure 1 in No. 282. I

Mr. Kasson to the Vienna Foreign Office.

DEAR BARON CALLICE: Referring to our conversation on Monday, and your courteous offer to obtain for the use of a commission of the American Government, engaged in examining special questions of river improvement, certain information desired respecting like works in Austria, I submit to your kind mediation the following questions:

How many years hare the Austrian and Hungarian Governments been engaged in systematic and permanent improvements of the Danube River to facilitate navigation?

What amount of money has been expended by the two governments for these permanent improvements ?

What affluents of the Danube have been in like manner improved ?

Has it resulted from these improvements that the expense of transportation of merehandise by the river has been perceptibly diminished? If so, what is the estimated percentage of such diminution of the charges as compared with charges previously made ?

If the projected system of improvements of the Danube is incomplete, what further amount of money is it expected will be required for their completion ?

If this information can be obtained in time to be communicated in December, it will especially meet the exigencies of the government commission.

I render in advance the acknowledgments due for your excellency's kind intervention, and pray you to accept the assurances of the high consideration with which I remain, alwaysYour excellency's most obedient servant,

JOHN A. KASSON. UNITED STATES LEGATION,

Vienna, November 25, 1879.

(Inclosure 2 in No. 282.–Translation.1
The Vienna Foreign Office to Mr. Kasson.

In response to the esteemed note of the 25th of last month, the imperial and royal ministry of foreign affairs has the honor to communicate to the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. John A. Kasson, the following preliminary information, obtained from the imperial and royal ministry of the interior, about the river regulations and other works which are designed to improve the navigation of the Danube and its tributaries in the Austrian part of the empire.

I. The systematic and permanent works for regulation of the river Danube between the Bavarian and the Hungarian frontier, a course of 377.335 kilometers in length, have only been commenced in 1850, and have, therefore, up to the end of 1879, continued for fully thirty years. These, aiming at closing the existing old lateral arms of the Danube, and at giving to the river an equal normal breadth, according to its nature, by concentrating the stream through means of embankments (erected along the side of the river), bave not yet been completed, and will have to be continued for many years to come.

II. These expenses, exclusively defrayed by the State, including those for the regulation of the Danube Canal, anaount to 14,750,000 florins in the stated period of thirty years.

For the improvement of the Danube near Vienna, a special undertaking of concurring interests, an amount of 30,600,000 florins has been granted, of which each of the three jurisdictions, state, province, and the municipality of Vienna, has undertaken to defray one-third. Including this last sum, the works for the regulation of the Danube would amount to a total of 45,350,000 florins.

In the 14,750,000 florins borne by the state alone are also included those sums expended in 1854 and 1855 for the improvement of the Danube at the so-called “Whirlpool" and " Eddy” (Strudel and Wirbel) by blasting rocks which impeded both ship and raft navigation, the same amounting to 396,000 florins.

III. Excepting the river Danube, the only works executed by the State for improying the rivers of Upper Austria are those for facilitating navigation on the Inn, the Salzach, and the Traun, whilst it expends smaller sums for improving raft navigation on the inferior streams Enns, Agger, and Vökla.

IV. Upon these rivers, during the above-mentioned period of thirty years, the sum of 960,000 florins was expended on the Inn from the mouth of the Salzach to the Aus

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