State v. Montgomery

• Decision Date: 03 February 1910
• Citation: 57 Wash. 192,106 P. 771
• Parties: STATE v. MONTGOMERY.
• Court: Washington Supreme Court

106 P. 771

57 Wash. 192

STATE v. MONTGOMERY.

Supreme Court of Washington

February 3, 1910

Department 2. Appeal from Superior Court, King County: A. W. Frater Judge.

J Montgomery was convicted of violating the law as to trade-marks, and he appeals. Affirmed.

Million & Houser and George Friend, for appellant.

PARKER J.

The defendant was convicted of a misdemeanor under the act of 1897 (pages 65-69, c. 47, Laws 1897), entitled 'An act relating to trade-marks.' The complaint charges the defendant as follows: 'Then and there being the said J Montgomery, in the county of King, state of Washington, on and 29th day of August, A. D. 1908, did then and there willfully and unlawfully use the genuine label of Allied Printing Trades Council, an association or union of workingmen without being authorized so to do by said Allied Printing Trades Council, the label so used having been theretofore duly adopted and used by said Allied Printing Trades Council and filed, as provided by law, in the office of the Secretary of State of the state of Washington, for the purpose of designating and distinguishing all goods, wares, and merchandise manufactured and put out by said Allied Printing Trades Council and its members, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Washington.'

The portions of the law with which we are here concerned are as follows: 'Sec. 3. Every such person, association or union, that has heretofore adopted or used, or shall hereafter adopt or use, a label, trade-mark, term, design, device or form of advertisement, as provided in section one of this act, may file the same for record in the office of the secretary of state by leaving two copies, counterparts or fac-similes thereof, with said secretary, and by filing therewith a sworn application specifying the name or names of the person, association or union on whose behalf such label, trade-mark, term, design, device or form of advertisement shall be filed, the class of merchandise and a description of the goods to which it has been, or is intended to be appropriated, stating that the party so filing or on whose behalf such label, trade-mark, term, design, device or form of advertisement shall be filed, has the right to the use of the same, that no other person, firm, association, union or corporation has the right to such use either in the identical form or in any such near resemblance thereto as may be calculated to deceive, and that the fac-simile or counterparts filed therewith are true and correct. There shall be paid, for such filing and recording, a fee of two dollars. Said secretary shall deliver to such person, association or union so filing or causing to be filed any such label, trade-mark, term, design, device or form of advertisement, so many duly attested certificates of the recording of the same as such person, association or union may apply for, for each of which certificates said secretary shall receive a fee of one dollar. Any such certificate of record shall, in all suits and prosecutions under this act, be sufficient proof of the adoption of such label, trade-mark, term, design, device or form of advertisement'

'Sec. 6. Every person who shall use or display the genuine label, trade-mark, term, design, device or form of advertisement of any such person, association or union, in any manner, not being authorized so to do by such person, union or association, shall be deemed guilty of a misdemeanor. * * *'

It is contended by learned counsel for appellant that the title of the act is insufficient to include the criminal features in the body thereof, and that the act is therefore invalid in so far as it provides for criminal liability for the violation of its terms. It seems to us that this contention has been disposed of by the former decisions of this court. In State v. Ames, 47 Wash. 328, 92 P. 137, a similar contention was made against the penal provisions of an act entitled, 'An act to establish pilot regulations for the strait of Juan De Fuca, Puget Sound, and all American waters pertaining thereto.' And in State v. Merchant, 48 Wash. 69, 92 P. 890, an act entitled, 'An act to protect stockholders and persons dealing with corporations in this state,' was assailed upon the same ground. It was held in both of these cases that the titles were sufficient to include penal provisions in the body of the acts. Some effort is made to distinguish between the titles there considered and the title to this act on the ground that this title is less suggestive of penal provisions in the body of the act than are those titles. None of these titles refer in terms to any penal provision in the body of the acts, nor do we think it necessary that they should do so in order to support such provisions. In State v. Merchant, at page 72 of 48 Wa sh., at page 891 of 92 Pac., Chief Justice Hadley, speaking for the court, said, 'The constitutional provision is not necessarily violated by mere failure to state in the title of an act that the act itself carries a penalty,' referring to the constitutional provision that 'no bill shall embrace more than one subject and that shall be expressed in the title.' It is not contended that the other provisions of the act...