State v. Wiggam
| Decision Date | 19 February 1918 |
| Docket Number | No. 23167.,23167. |
| Citation | 187 Ind. 159,118 N.E. 684 |
| Parties | STATE v. WIGGAM. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
Julian C. Wiggam was charged with unlawfully using a trade-mark, and from a judgment quashing the affidavit, the State appeals. Affirmed.
Evan B. Stotsenburg, of New Albany, and Joshua E. Florea and Martin M. Hugg, both of Indianapolis, for the State. Charles S. Wiltsie and Alexander G. Cavins, both of Indianapolis, for appellee.
Appellee was charged by affidavit with violating section 5 of what is commonly known as the Bottling Act (Acts 1903, p. 282; Burns 1914, § 10439). The affidavit was quashed because the act was considered unconstitutional. Appellee contends that it violates the following provisions of the Constitution:
“The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Section 23, article 1.
“The General Assembly shall not pass any local or special laws in any of the following enumerated cases, that is to say *** for the punishment of crimes and misdemeanors.” Section 22, article 4.
“In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state.” Section 23, article 4.
[1] It is fundamental that a state Constitution is a limit of power, that is to say, the Legislature may pass any law, so far as the state Constitution is concerned, except such as are prohibited by this instrument.
[2] The Legislature must classify in nearly every act which it passes, but there must be a reason for the classification based on the public health, public morals, or public welfare. What is reasonable must be a judicial question; otherwise the limitations in the Constitution are meaningless, and the Legislature is omnipotent in the legislative field.
In determining whether the above provisions of the Constitution have been violated, it is the duty of this court to be circumspect to detect reasons concerning the public health, public morals or public welfare, which the Legislature had in mind.
The “privileges and immunities” section, the “class” section, and the “general law” section are not violated, if the act is reasonably designed to protect the health, morals, or welfare of the public.
With these rules in view, we shall now consider the act in question.
Section 1 provides that:
“Any person, company, firm, corporation or association *** engaged in the business of manufacturing or vending anything sold in bottles, *** cans, kegs, barrels, hogsheads or other inclosures made of glass, metal or wood, upon which his, their or its, initials, name or names, mark or marks, trade-mark or trade-marks shall be impressed, stamped, marked or blown, for the purpose of protecting the ownership of such bottles, etc.,” may publish and record such name or mark. Burns 1914, § 10435.
Section 2 provides that the taking of “money or security of any kind for the return” of such property, or “the entering into an agreement” or arrangement “for the return” of such property, or “the payment of an equivalent if not returned shall not be deemed to *** constitute a sale *** nor deprive such person *** of *** ownership in or title to” such property. Burns' 1914, § 10436.
Section 3 provides that “possession” of such property “shall be deemed to be prima facie evidence of an intention to unlawfully fill or cause to be filled, sell or cause to be sold, buy or cause to be bought, dispose of or cause to be disposed of, traffic in or cause to be trafficked in, wantonly destroy or cause to be wantonly destroyed,” such property, “unless such possession was obtained with the written consent” of the owner, or such property was “purchased” from such owner. Burns 1914, § 10437.
Section 4 provides for search warrant and seizure, and is not involved in this decision.
Section 5 provides that:
It is “unlawful hereafter for any person *** without the written consent of the owner or owners thereof, to fill or cause to be filled [any of these inclosures belonging to a person who has complied with section 1] with anything for sale or with anything that will interfere with the use thereof by the owner thereof, or to sell, or cause to be sold, dispose of, or cause to be disposed of, buy or cause to be bought with the intent to defraud the owner or owners of such bottle or bottles, syphon or syphons, can or cans, keg or kegs, barrel or barrels, hogshead or hogsheads *** not purchased from the owner,” etc.
This section then provides for a fine of $1 for each bottle, syphon, can, keg, etc., filled or caused to be filled, sold or caused to be sold, etc., with intent to defraud the owner. Burns 1914, § 10439.
[3] By a familiar rule of construction, the words, “other inclosures made of glass, metal or wood,” are limited to those of the classes “bottles, syphons, cans, kegs, barrels, hogsheads.” Wiggins v. State, 172 Ind. 78, 87 N. E. 718, and cases there cited. Therefore, persons “manufacturing or vending anything sold” in boxes, jugs, jars, pails, tubs, racks, trays, crates, or refillable inclosures, made of earthenware, rubber, pasteboard or strawboard could not be protected by complying with this act.
[4][5] The state contends that this act is designed to protect the public against fraud in the use of containers bearing a name or trade-mark. But it is...
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