People v. Bartholf

• Decision Date: 03 October 1893
• Citation: 139 N.Y. 32,34 N.E. 759
• Parties: PEOPLE v. CANNON. SAME v. QUINN. SAME v. BARTHOLF.
• Court: New York Court of Appeals Court of Appeals

139 N.Y. 32

34 N.E. 759

PEOPLE

v.CANNON.¹

SAME

v.QUINN.

SAME

v.BARTHOLF.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from supreme court, general term, first department.

William P. Cannon, Hugh Quinn, and George Z. Bartholf were convicted, under separate indictments, for violating the ‘bottling act,’ and, from judgments of the general term (18 N. Y. Supp. 25, 569, and 20 N. Y. Supp. 782) affirming the judgments of conviction, they appeal. Affirmed as to Cannon. Reversed as to Quinn and Bartholf.

The other facts fully appear in the following statement by PECKHAM, J.:

These are appeals from convictions of the above defendants, affirmed by the general term of the supreme court in the first department. Each defendant was convicted, upon a separate indictment and trial, of a violation of what is described in the various records as the ‘Bottling Act,’ and known as chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888. The first three sections of the act are here alone material. The title of the act, and the sections spoken of, read as follows:

‘An act to protect the owners of bottles, boxes, siphons, and kegs used in the sale of soda waters, mineral and aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer or other beverages.

‘Section 1. Any and all persons and corporations engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer, or other beverages, or medicines, medical preparations, perfumery, compounds or mixtures, in bottles, siphons, tins or kegs, with his, her, its or their name or names or other marks or devices branded, stamped or engraved, etched, blown, impressed or otherwise produced upon such bottles, siphons, tins or kegs, or the boxes used by him, her, it or them, may file in the office of the clerk of the county in which his, her, its or their principal place of business is situated, and also in the office of the secretary of state, a description of the name or names, marks or devices so used by him, her, it or them, respectively, and cause such description to be printed once in each week for three weeks successively in a newspaper published in the county in which said notice may have been filed as aforesaid, except that in the city and county of New York and the city of Brooklyn, in the county of Kings, such publication shall be made for three weeks successively in two daily newspapers published in the cities of New York and Brooklyn, respectively.

‘Sec. 2. It is hereby declared to be unlawful for any person or persons, corporation or corporations, to fill with soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer or other beverages, or with medicine, medical preparations, perfumery, compounds or mixtures, any bottle, box, siphon, tin or keg, so marked or distinguished as aforesaid, with or by any name, mark or device, of which a description shall have been filed and published, as provided in section one of this act, or to deface, erase or obliterate, cover up or otherwise remove, or conceal, any such name, mark or device thereon, or to sell, buy, give, take or otherwise dispose of or traffic in the same without the written consent of or unless the same shall have been purchased from the person or persons, corporation or corporations whose mark or device shall be or shall have been in or upon the bottle, box, siphon, tin or keg so filled, trafficked in, used or handled as aforesaid. Any person or persons or corporations offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be punished for the first offense by imprisonment not less than ten days nor more than one year, or by a fine of fifty cents for each and every such bottle, box, siphon, tin or keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offense by imprisonment, not less than twenty days nor more than one year; or by a fine of not less than one dollar nor more than five dollars for each and every bottle, box, siphon, tin and keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment in the discretion of the magistrate before whom the offense shall be tried.

‘Sec. 3. The use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be or shall have been upon the same, without such written consent or purchase as aforesaid, of any such marked or distinguished bottle, box, siphon, tin or keg, a description of the name, mark or device whereon shall have been filed and published as herein provided, for the sale therein of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or of any articles of merchandise, medicines, medical preparations, perfumery, compounds, mixtures or preparations, or for the furnishing of such or similar beverages to customers, or the buying, selling, using, disposing of or trafficking in any such bottles, boxes, siphons, tins or kegs by any person other than said persons or corporations having a name, mark or device thereon, or such owner without such written consent, or the having by any junk dealer or dealers in second-hand articles possession of any such bottles, boxes, siphons, tins or kegs, a description of the marks, names or devices wherein shall have been so filed and published as aforesaid, without such written consent, shall and is hereby declared to be presumptive evidence of the said unlawful use, purchase and traffic in of such bottles, boxes, siphons, tins or kegs.’

There were three counts in each indictment,-one for unlawfully buying from a person to the grand jury unknown, one for unlawfully taking from a person to the grand jury unknown, and one for unlawfully trafficking in and disposing of in a manner and by means to the grand jury unknown, certain bottles; describing them as having marks on them, etc., as provided for in the first section of the above act. The defendants are dealers in, among other articles, second-hand bottles of all descriptions. They are among the largest dealers in those articles in the city of New York, have been engaged in that business for a number of years, and their stock on hand, at the time when the occurrences herein spoken of took place, reached, in each case, to the number of several hundred thousand bottles. Neither of the defendants was able to tell of whom or where he purchased the bottles which are the subject of complaint in this case. They purchase all kinds of bottles from whoever comes with them, if satisfied they have not been stolen. Their purchases come from all over the country, by rail and in vessels, and packed in boxes and barrels, and they are ignorant of the kinds of bottles that thus come until they have been taken from the various railroad stations or vessels, and brought to their stores and sorted out. The defendants claimed to be ignorant of the possession of any of the classes of bottles described in the indictments until their places were visited by the police under a search warrant sworn out by a detective employed by an association of manufacturers of soda waters, beer, etc., and who were the owners of bottles registered as provided for by the law. Among all the bottles that were in the possession of the defendants, there are involved in this proceeding but very few, as the evidence shows there were only found an insignificant quantity of registered bottles, as compared with the immense numbers of others which were on hand, and dealt in by the defendants.

Everett P. Wheeler, Wm. J. Gaynor, and A. W. Tenney, for appellants.

Thomas C. E. Ecclesine, Special Dist. Atty., (Wm. Travers Jerome, of counsel,) for the People.

PECKHAM, J., (after stating the facts.)

These prosecutions have been instituted for the purpose of obtaining a decision in regard to the validity of the law under which the convictions have been secured. Counsel for both parties have so stated, and the courts below have distinctly ruled upon the various propositions raised, so that the constitutionality of the statute might be fairly tested. It is claimed that the act deprives all persons, other than the manufacturers, of the right to traffic in or give away sparkling or aerated liquors or beer which have ever been placed in a trade-mark bottle. It is said that, if the manufacturer refuses to sell the bottle, he, in effect, prohibits the sale or gift of that which is contained in it, except over the counter, and it is urged that the legislature cannot grant to the manufacturer such a monopoly. It is needless to speculate as to the powers of the legislature upon this subject, because we are of the opinion the statute is not susceptible of any such construction.

It is made unlawful for any one to fill up with soda waters, etc., any bottle marked and distinguished as in the first section of the act is provided, or to deface, erase, or obliterate any such mark on such bottle, or to sell, etc., or to otherwise disposeof or traffic in, the same, without the written consent of, or unless the same have been purchased from, the person whose mark is on the bottle. This provision of the act refers to the use of these empty bottles by some one other than the owner of the marks thereon, and after the original contents of such bottles have been taken out, and then unlawfully using or trafficking in the empty bottles. After the retail dealer, or any one else, has purchased the soda water or beer from the manufacturer, and the same has been delivered to him, packed in the bottles thus marked, he is not prevented, by anything in the statute, from himself selling such...