People v. Luhrs

• Decision Date: 20 May 1909
• Citation: 195 N.Y. 377,89 N.E. 171
• Parties: PEOPLE v. LUHRS.
• Court: New York Court of Appeals Court of Appeals

195 N.Y. 377

89 N.E. 171

PEOPLE

v.LUHRS.

Court of Appeals of New York.

May 20, 1909.

Appeal from Supreme Court, Appellate Division, First Department.

John H. Luhrs was convicted of violating the trade-mark law (Pen. Code, § 364), and from an order of the Appellate Division (127 App. Div. 634,111 N. Y. Supp. 749), affirming the conviction, he appeals. Affirmed.

An information filed by the district attorney of the county of New York charged the defendant with violating section 364 of the Penal Code, known as the ‘trade-mark law.’ After a trial before three justices of the Court of Special Sessions, he was convicted and sentenced to pay a fine of $50, and, in default of payment, to imprisonment for 20 days. He paid the fine under protest and appealed to the Appellate Division, where the judgment of conviction was affirmed; two of the justices dissenting. He then appealed to the Court of Appeals.

Upon the trial it was admitted that a corporation known as the ‘Wilson Distilling Company’ used a trade-mark to indicate that it was the manufacturer and producer of whisky ‘placed and contained in’ a certain bottle in evidence ‘by the said corporation,’ and that the trade-mark affixed to said bottle was lawfully adopted by the company ‘and usually affixed to bottles of whisky manufactured and produced by the said corporation to denote that the same was manufactured and produced by the said corporation.’ Evidence was given tending to show that the defendant, a barkeeper in a certain saloon in the borough of Manhattan, repeatedly refilled the bottle in question from a demijohn kept beneath the bar after the original contents placed in said bottle by the Wilson Distilling Company had been disposed of, and sold the whisky thus substituted upon the representation that it was the product of and had been bottled by said corporation, although he knew that it had not been placed in said bottle by that company. It did not appear ‘whether the whisky with which he refilled the bottle was Wilson whisky or not.’

Louis Lowenstein and Francis William Russell, for appellant.

William Traverse Jerome, Dist. Atty. (Robert S. Johnstone, of counsel), for the People.

VANN, J. (after stating the facts as above).

The intention of the Legislature to thoroughly protect both the public and the owner from the furtive use of trade-marks in any way is shown by the language of section 364 of the Penal Code under which the defendant was convicted. The first five subdivisions of that section, entitled ‘Offenses Against Trade-Marks,’ make it a crime to knowingly counterfeit a trade-mark; to use a false or counterfeit trade-mark, or even a genuine trade-mark without the owner's consent; to sell or keep for sale an article of merchandise to which is attached a false or counterfeit trade-mark or a genuine trade-mark without the consent of the owner; to have in possession a counterfeit trade-mark, knowing it to be such; to sell or offer to sell an article labeled with a trade-mark which appears to indicate, but does not truly indicate, the quantity, quality, character, place of manufacture, or the name of the manufacturer. Then follows subdivision 6, which declares one guilty of a misdemeanor ‘who knowingly sells, offers or exposes for sale, any goods which are represented in any manner, by word or deed, to be the manufacture or product of any person, firm or corporation, other than himself, unless such goods are contained in the original packages and under the labels, marks or names placed thereon by the manufacturer who is entitled to use such marks, names, brands, or trade-marks.’ Pen. Code, § 364, subd. 6, as it was prior to amendments of 1908. The part thus quoted prohibits the sale of goods, protected by a lawful trade-mark, which are represented to be the manufacture of another, unless they are contained in the original package and under the label placed thereon by the manufacturer. In other words, it prohibits the sale of goods represented to have been made by the owner of a trade-mark, except as contained in the original package and as put up by him under his label. The protection extends to the bottling of a liquid, for instance, as well as the making thereof. The statute says ‘the’ original package, not ‘an’ original package, thus showing it was the intention of the Legislature, as applied to the case in hand, to prohibit the sale even of Wilson whisky under the representation that it was placed in the original package by the Wilson Distilling Company, unless such was the fact. As was well said by Mr. Justice Clarke below: ‘The trade-mark and label guarantees that the whisky in the bottle has not only been manufactured by the Wilson Distilling Company, but that the contents of the bottle have been placed in that identical bottle by the said company.’ People v. Luhrs, 127 App. Div. 634, 635,111 N. Y. Supp. 749, 750. The argument of the appellant that subdivision 6 simply makes it a crime to refill a Wilson bottle with whisky not made by the Wilson Company gives precisely the same meaning to both subdivisions 5 and 6, in violation of the rule of construction that all the words of a statute are to be given effect, if possible. It would be unreasonable to hold that the Legislature intended to prohibit the same act by two successive commands, expressed in two successive clauses, each of which makes that identical act a crime, when the statute permits the construction that the second clause was aimed at a different evil, caused by a different act, the prohibition of which was necessary to furnish the complete protection which it was the object of the Legislature to afford.

The main question discussed by counsel is whether the statute, as thus construed, violates either the state or the federalConstitution. The object of the statute is to prevent fraud, affecting both the public and the owners of trade-marks, by prohibiting the sale of goods from an original package labeled with a trade-mark, upon the representation that such goods were placed in that package by the owner of the label. The enactment of statutes to prevent fraud is a proper exercise of the police power of the state, which is under the control of the Legislature. The power to pass laws upon the subject necessarily carries with it the choice of methods to make the legislation effective. The right is not without limitation, for it must be so exercised as not to deprive a citizen of life, liberty, or property without due process of law, or to deny to any person the equal protection of the laws. A reasonable regulation to protect the rights of all, however, does not deprive any one of his property simply because it interferes with the use thereof to the extent necessary to protect the public from fraudulent practices. Legislation which interferes only...