Superior Court of Cincinnati.

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marks in use in international commerce, and secure legal and equitable protection for them in this country if they are citizens of any foreign country in which citizens of the United States are accorded similar privileges. By the convention between France and the United States, proclaimed in 1869, citizens of the United States were accorded privileges in France similar to those granted by this act to citizens of other countries. Plaintiff may therefore claim the benefit of this act.

But it is said that the convention between France and this country requires citizens of France to deposit duplicate copies of their marks. both in Paris and in Washington, and the deposit in Paris is not proven. To this it may first be said that the act of Congress of 1881 was later than the convention, and that so far as courts of law are concerned, subsequent legislation prevails over treaty provisions in the administration of municipal law. See Cherokee Tobacco case, 2 Wall., 632; Taylor et al. v. Morton, 2 Curtis C. C., 454; The Clinton Bridge, Woolworth, 150.

But the second and conclusive answer to this objection is that the article in the convention relied on by counsel does not require the deposit of duplicate copies of trade-marks in Paris by French citizens. The article, as proclaimed in English, was as follows: "If the owners of trademarks, residing in either of the two countries, wish to secure their rights in the other country, they must deposit duplicate copies of those marks in the patent office at Washington, and in the clerk's office of the Tribunal of the Seine at Paris.

In a decision rendered by General Leggett, when commissioner of patents, December 6, 1872, this article was construed to mean that citizens of the United States should deposit duplicate copies in Paris only to secure rights in France, and that French citizens only need to deposit their marks in Washington to secure their rights in this country. See Browne on Trademarks, 559, note at bottom of the page.

In 1887 the French minister at Washington called the attention of the Secretary of State to the fact that the French draft of this treaty as signed contained in this article after the verb the word "respectivement" or "respectively," which did not appear in the English draft, as proclaimed by President Grant. The Secretary of State responded that the article was construed by the United States as if the omitted word had been used. See Browne on Trade-marks (2d ed.) 559. It is thus apparent that whether the law of 1881 or the treaty of 1869 prevails, the plaintiff is in court with all the rights of protection to its trade-marks that this court could accord to a citizen of the United States.

The decree will be for a perpetual injunction, and for reference to Rufus B. Smith as special master to take testimony and report on the amount of damages sustained by plaintiff by reason of the use of its trade-marks by defendants.

Follett, Hyman & Kelley and Chas. Bulkley Hubbel, attorneys for plaintiff.

Geo. J. Murray and Wm. L Avery, attorneys for defendant.

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Village of Wilmington v. Egan.

"DOW LAW.”

[Mayor's Court of Wilmington, Ohio.]

Before Z. G. A. Haworth, Mayor.

WILMINGTON (VILLAGE) V. LARRY EGAN.

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The action in the above entitled cause was for the alleged violation of a prohibitory ordinance of said village, passed in pursuance of and by virtue of sec. 11 of the act commonly called the Dow Law, wherein sec. 11 of said act purports to confer power on municipal corporations to wholly prohibit the liquor within their corporate limits.

A copy of the ordinance is as follows:

AN ORDINANCE

To prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail, within the corporate limits of the village of Wilmington, Ohio.

SECTION 1. Be it ordained by the council of the incorporated village of Wilmington, Ohio, that all ale, beer and porter houses, and other places where intoxicating liquors are sold at retail for any purpose, or in any quantity, other than upon prescriptions issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, are hereby prohibited within the corporate limits of said village; but nothing herein contained shall be construed to prohibit places where intoxicating liquors are or may be manufactured from the raw material and sold by the manufacturers thereof, at the manufactory, in quantities of one gallon or more at any one time.

SEC. 2. Be it further ordained, that it shall be unlawful for any person or persons, either as principal, agent or employe, to keep within the corporate limits of said village any ale, beer or porter house, or other place where intoxicating liquors are sold at retail for any purpose or in any quantity contrary to the provisions of sec. 1 of this ordinance.

SEC. 3. Be it further ordained, that whosoever, either as principal, agent or employe, shall keep within the corporate limits of said village any ale, beer or porter house, or any other place where intoxicating liquors are sold at retail for any purpose or in any quantity contrary to the provisions of secs. 1 and 2 of this ordinance, shall on conviction thereof be fined ten ($10) dollars for each and every day upon or in which such house or place is so kept, but not to exceed fifty dollars upon the first conviction, nor one hundred dollars upon any subsequent conviction under this ordinance, and all persons convicted under this ordinance shall pay the costs of prosecution.

SEC. 4. This ordinance shall take effect and be in force from and after the twenty-third day of May, 1887.

Passed April 14, 1887.

Z. G. A. HAWORTH, Mayor,

WM. MCMILLAN, Corporation Clerk.

The defendant filed a motion to quash the affidavit and assigned the following reasons:

First-The ordinance under which this action is brought is invalid because it is not properly and legally authenticated as required by law.

Second-Said ordinance as appears of record was not published in the form and manner required by law.

Third-The said ordinance is invalid because the penalty prescribed for its violation is void for uncertainty.

Fourth-The offense complained of in this action is in its nature a continuous one, and the penalty imposed is in excess of the power of the corporation to enforce.

† A contra decision is found in Van Wert v. Brown, 47. O. S., 477.

Mayor's Court of Wilmington, Ohio.

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Fifth-The act of the legislature under which the corporation claims the right enact the ordinance under which this action is brought is an act to provide against the evils resulting from the sale of intoxicating liquors, as expressed in its title, and could not confer the power to prohibit the traffic in said liquors unless it so expressed in its title.

Sixth-The ordinance is void because it is in conflict with the second clause of of sec. 18 of the schedule to the constitution of the state of Ohio.

Seventh-That said ordinance is unconstitutional and void.

The first, second, third, fourth and fifth causes of the motion to quash were passed upon by the court, the motion as to the first cause was overruled, but as to the second, third, fourth and fifth causes they were sustained. Without giving the opinion of the court on these points we come to the sixth and seventh causes assigned in said motion as to the constitutionality of the prohibitory or local option feature of the Dow law.

The opinion of the court on this question is given in full, as follows: We now come to the most important question involved in this case, in the causes assigned in the sixth and seventh sections of the motion to quash the affidavit, which causes are: That the ordinance is void because it is in conflict with the second clause of sec. 18 of the schedule to the constitution of the state of Ohio, and because said ordinance is unconstitutional and void.

The language of schedule 18, as referred to, is as follows: "No license to traffic in intoxicating liquors shall hereafter be granted in this state, but the general assembly may by law provide against evils resulting therefrom.'

The decision of the question involved in the discussion of this proposition is a very embarrassing and delicate duty when devolved on an inferior court (municipal court), and it is a duty we would gladly have had placed in another, because we feel that the influence of a decision with reference to such a subject-matter is far reaching in its results, be that opinion as it may. But while the disposition of a question of its nature is of great importance, though it be the opinion of an inferior court, the same duty when devolved on the Supreme Court of our state would be of exceedingly more importance, and its decision would be stamped with that character that would invite the respect of all. And while it is the imperative duty of our highest court, which is endowed with the power and required to determine the validity of an act when its constitutionalty is at an issue, yet it is a well known and conceded proposition of law that the presumption of every act of the general assembly must be in favor of its validity, and unless such court can show such act to be irreconcilable and in conflict with the constitution, it will be unwarranted in an adverse conclusion on its constitutionality.

Being fully advised as to the duties and obligations of a court in its judicial inquiry of the subject-matter before it, we endeavor to dispose of the questions before us in the light of our conception of what the law is, and leave to a higher court, if necessary, the correction of any errors which may leaven our decision in this matter.

The subject of temperance, or rather that of intemperance, is a question that has agitated the legislation of this state from its infancy. Under the old constitution we had a license system in which provision was made against tavern keepers retailing spirituous liquors to be drank in the place where sold, or selling in less quantities than a quart without being duly licensed, and any keeper of any such place found viola

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Village of Wilmington v. Egan.

ting any of its provisions was punished. This was substantially the tenor of legislation under the old constitution in regard to the liquor traffic. The sale of intoxicating liquors being licensed on certain terms the legislature then made certain provision for its regulation.

But the first legislation in reference to the liquor traffic, and of which we have more directly to do, was under the new constitution of 1851. The act of May 3, 1852, "For the organization of cities and incorporated villages," was the first. Then follows the general act of May 1, 1854, entitled "An act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio." The first section of the act reads as follows:

"That it shall be unlawful for any person or persons, by agent or otherwise, to sell in any quantity intoxicating liquors to be drank in, upon or about the building or premises where sold, or to sell such intoxicating liquors to be drank in an adjoining room, building or premises, or other place of public resort connected with said building.' This act took its authority from the second clause of sec. 18, of the schedule to the constitution, "to provide against evils resulting therefrom."

The above law remained substantially the same till 1857, when it was declared that all cities and incorporated villages shall have the power and may by ordinance provide for its exercise. "To regulate or prohibit ale and porter shops and houses, and places for significant or habitual resort for tippling and intemperance. Up to this time the liquor traffic was under direct control of the state legislature. But by this act the power, so much as the legislature had the right to confer, was given to municipal corporations in order that they might more effectually provide against the evils of the liquor traffic by exercising a police regulation over the business of trafficking in intoxicating liquors. From this time on till the period of the revision by the commission of 1880, municipal corporations exercised the power conferred on it by this act and amendatory acts thereto, and the municipal code of 1869, all being substantially the same legislation.

By the act of revision the general law of May 1, 1854, was substantially incorporated in sec. 6941 of the Rev. Stat., but in order that municipal corporations might exercise the power they had under the act of 1857, sec. 1692 of the Rev. Stat., in its enumeration of power conferred on municipalities, declared by paragrph 5 of such section, the power in such corporations "to regulate ale, beer and porter houses and shops."

But passing hastily to the Act of May 14, 1886, known as the Dow law, which is entitled, "An act providing against the evils resulting from the traffic in intoxicating liquors," we find a provision in sec. 11 of said act providing: "And any municipal corporation shall have full power to regulate, restrain and prohibit, ale, beer, and porter houses, and other places where intoxicating liquors are sold at retail for any purpose or in any quantity other than is provided for in sec. 8, of this act." Now this power is unlike any heretofore granted to municipal corporations. All other legislation never attempted to further legislate and restrain or prohibit places where such traffic was carried on always with the limitation "to be drank in or upon the premises where sold," while the power conferred by this act is prohibitory of the traffic or sale of liquors at retail as a beverage in any place within the corporate limits of the village. But we will elaborate on this point farther on in the

case.

Mayor's Court of Wilmington, Ohio.

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We have endeavored briefly to review the liquor legislation of the state and now will proceed to discuss the several adjudications arising out of such legislation.

Excepting the prohibitory provision in the Dow law, and as a summary of the above review of the liquor legislation, we aver the proposition, that in all its legislation in reference to the traffic in intoxicating liquors, the general assembly never intended in such legislation to absolutely prohibit the traffic in intoxicating liquors, but its sole purpose as evidenced by the effect as well as the form of its legislation was to regulate and restrain the liquor traffic, and we say this in the sense of it being with reference to the traffic as a beverage, because this was the evil to be provided against and not with reference to the use of liquors for medical or mechanical purposes.

Now, the authority to enact the various laws we have just briefly reviewed to regulate and restrain the liquor traffic, is founded on the second clause of sec. 18 of the schedule to the constitution of 1851, and as to the mearing and intent of that clause, "but the general assembly may, by law, provide against evils resulting therefrom," there have been several decisions. And in none of those decisions of the Supreme Court we have been able to find the contrary of our proposition true.

The first case arising as to the power conferred on the legislature whether to prohibit or to regulate and restrain the liquor traffic was so conferred by the second clause of sec. 18 of the schedule, is so found in the case of Miller v. The State, 3 Ohio St., 475.

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There a prosecution was had for a violation of the general act of May 1, 1854, being sec. 1 of said act, which was "An act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio," and making it an offense for any person, or persons, by agent or otherwise, to sell in any quantity, intoxicating liquors, to be drank in, upon, or about the building or premises where sold, or to sell such intoxicating liquors to be drank in any adjoining room, building or premises, or other place of public resort connected with said building.' Said act also made it unlawful to sell to minors, to persons intoxicated or in the habit of getting intoxicated, and also providing in sec. 4 thereof, that the keeper of any such place where intoxicating liquors were sold in violation of this act, should on conviction thereof, be punished, and the business be declared a nuisance and abated as such.

This law did not attempt to prohibit the sale of intoxicating liquors, but to regulate and restrain the sale in such a manner that it might be sold, but must be taken from the premises where sold, to be drank. But in the event the keeper allowed a sale of liquor so made to be drank in or upon such premises where sold, then he became a violator of this act, and on conviction his business was to be declared a nuisance and abated as such.

There was no intention, as evidenced by the effect and the form of this act, to prohibit a sale, but the object sought was to provide against the evils of the traffic. The validity of this statute was the issue as well as the question of correct legislative action, and the extent of judicial power.

In this case it was contended by the plaintiff in error, that the second clause of sec. 18 of the schedule was "a limitation of the power of the general assembly under which they may not prohibit such sale, but may pass laws providing against the evils resulting therefrom."