646, 22 L. ed. 311, 312, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380; Ellis v. Frazier, 38 Or. 462, 53 L.R.A. 454, 458, 63 Pac. 642; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Thompson v. McLeod, 112 Miss. 383, L.R.A.1918C, 893, 73 So. 193, Ann. Cas. 1918A, 674; Re Watson, 17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321; Pittsburg, C. & St. L. R. Co. v. State, 49 Ohio St. 18, 16 L.R.A. 380, 30 N. E. 435; Levi v. Louisville, 97 Ky. 394, 28 L.R.A. 480, 30 S. W. 973; Reser v. Umatilla County, 48 Or. 326, 120 Am. St. Rep. 815, 86 Pac. 595; Henderson v. London & L. Ins. Co. 135 Ind. 23, 20 L.R.A. 827, 41 Am. St. Rep. 410, 34 N. E. 565; State v. Lakeside Land Co. 71 Minn. 283, 73 N. W. 970; State ex rel. Minces v. Shoenig, 72 Minn. 528, 75 N. W. 711; State v. Whitcom, 122 Wis. 110, 99 N. W. 486; State v. Pennoyer, 65 N. H. 113, 5 L.R.A. 709, 18 Atl. 878; St. Louis v. Spiegel, 75 Mo. 145; Willis v. Standard Oil Co. 50 Minn. 290, 52 N. W. 652; State v. Moore, 113 N. C. 697, 22 L.R.A. 472, 18 S. E. 342; Kiowa County v. Dunn, 21 Colo. 185, 40 Pac. 357; Smith v. County Comrs. Ct. 117 Ala. 196, 23 So. 141; Livingston v. Albany, 41 Ga. 21; Chicago v. Collins, 175 Ill. 445, 49 L.R.A. 408, 67 Am. St. Rep. 224, 51 N. E. 907; Sims v. Jack son Parish, 22 La. Ann. 440; Banger's Appeal, 109 Pa. 94.

Mr. J. C. Murphy, Attorney General of Alaska, argued the cause and filed a brief for defendant in error:

The legislature may itself select the lines of business upon which it may impose a tax, and it is beyond the province of the judiciary to control the acts of the legislature in that respect. It is wholly immaterial what may have been the purpose or motive which animated the legislature in imposing the tax in question. The remedy, if any, lies with the people who elect the legislature.

Alaska Pacific Fisheries v. Alaska, 149 C. C. A. 272, 236 Fed. 52.

The power to tax is the power to destroy.

McCray v. United States, 195 U. S. 26, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561.

The discrimination against the manufacture of meal and oil from a food fish, like herring (as against the same material produced from salmon offal), would seem to be well justified.

Quong Wing v. Kirkendall, 233 U. S. 59, 56 L. ed. 350, 32 Sup. Ct. Rep. 192. The territory has the power to impose new taxes, and also taxes in addition to those already in force.

Alaska Pacific Fisheries v. Alaska, 149 C. C. A. 262, 236 Fed. 52.

The final contentions made by plaintiff in error, to the effect that the imposition of the taxes complained of is contrary to the Organic Act, in that their effect is to alter, modify, amend, or repeal the Congressional Acts of June 6, 1900, and June 26, 1906, and that the taxes imposed under the territorial acts are not uniform, and are not levied under general laws, have all been considered by the United States circuit court of appeals for the ninth circuit, and were disposed of by that court contrary to the views expressed by plaintiff in error.

Alaska Pacific Fisheries v. Alaska, 149

C. C. A. 262, 236 Fed. 52.

Mr. Justice Holmes delivered the opinion of the court:

This is an action to recover the amount of taxes levied under statutes of Alaska, which the plaintiff alleges to be contrary to the Act of Congress of August 24, 1912, chap. 387, § 3, 37 Stat. at L. 512, Comp. Stat. § 3530, 1 Fed. Stat. Anno. 2d ed. p. 230, creating a legislative assembly in the territory of Alaska, and to the Constitution of the United States. Judgment Austin v. Boston, 7 Wall. 694, 19 L. was given for the defendant upon deed. 224; Spencer v. Merchant, 125 U. S. murrer to the complaint, the parties agree355, 31 L. ed. 767, 8 Sup. Ct. Rep. 921;ing that the foregoing grounds of recovery Quong Wing v. Kirkendall, 223 U. S. 62, 56 L. ed. 350, 32 Sup. Ct. Rep. 192. When Congress, under the Organic Act, created the territorial legislature, and authorized it to impose other and additional taxes, it undoubtedly realized that the territory would be unable to carry on its business with the limited amount of revenue provided for under former congressional acts, and gave it express authority to increase the amount of taxes already imposed.

were the only matters in dispute. The statutes attacked, viz., May 1, 1913, April 29, 1915, and May 3, 1917, levy license taxes of $2 a barrel, and $2 a ton, respectively, upon persons manufacturing fish oil, fertilizer, and fish meal in whole or in part from herring. The act of Congress, after giving effect to the Constitution and laws of the United States in the territory, provides that the authority therein granted to the legislature "to alter, amend, modify, and repeal laws in

.

.

force in Alaska shall not extend to the
fish
laws
of the
United States applicable to Alaska, or to
the laws of the United States providing
for taxes on business and trade
Provided further, That this provision shall
not operate to prevent the legislature from
imposing other and additional taxes or
licenses." Some reliance is placed also
upon 9, that all taxes shall be uniform
upon the same class of subjects, etc., and
that no tax shall be levied for territorial
[48] purposes in excess of 1 per centum
upon the assessed valuation of property
therein in any one year.

ed. 205, 8 Sup. Ct. Rep. 273; Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 482, 55 L. ed. 297, 303, 34 L.R.A. (N.S.) 671, 31 Sup. Ct. Rep. 265. We need not consider whether abuses of the power might go to [49] such a point as to transcend it, for we have not such a case before us. The acts must be judged by their contents, not by the allegations as to their purpose in the complaint. We know of no objection to exacting a discouraging rate as the alternative to giving up a business, when the legislature has the full power of taxation. The case is different from those where the power to tax is limited to inspection fees and the like, as in Postal Teleg.-Cable Co. v. Taylor, 192 U. S. 64, 72, 48 L. ed. 342, 346, 24 Sup. Ct. Rep. 208.

The complainant alleges that the tax will prohibit and confiscate the plaintiff's business, which is that of manufacturing fish oil, fertilizer, fish meal, and byproducts from herring, either in whole or But it is said that, however it may be in part; that the tax unreasonably dis- with regard to the Constitution, taken by criminates against the plaintiff, as it levies itself, the statutes brought into question no tax upon the producers of fish oil, etc., are contrary to the act of Congress from from other fish, and is otherwise ex- which the local legislature derives its tortionate; and that it contravenes the power. In the first place, they are said act of Congress in lack of uniformity and to be an attempt to modify or repeal the in exceeding 1 per centum of the actual fish laws of the United States. The Act value of the plaintiff's property. The of Congress of June 6, 1900, chap. 786, prophecies of destruction and the allega- § 29, 31 Stat. at L. 321, 331, Alaska Comp. tions of discrimination as compared with Laws, § 2569, imposes a tax on fish-oil similar manufactures from salmon are works of 10 cents per barrel and on ferdenied by the attorney general for Alaska, tilizer works of 20 cents per ton, rethe latter denial being based upon a com- peated in slightly different words by the parison of the statutes, which, of course, Act of June 26, 1906, chap. 3547, 34 Stat. is open. We are content, however, to at L. 478, Comp. Stat. § 3628, 1 Fed. Stat. assume for the purposes of decision that, Anno. 2d ed. p. 353, Alaska Comp. Laws, not to speak of other licenses, the ques- § 259. But these are not fish laws as we tioned acts do bear more heavily upon understand the phrase. It is argued, howthe use of herring for oil and fertilizer ever, that at least they import a license than they do upon the use of other fish. (License Tax Cases, 5 Wall. 462, 470, But there is nothing in the Constitution | 18 L. ed. 497, 500), and that a tax alleged to hinder that. If Alaska deems it for to be prohibitory flies in their teeth. It its welfare to discourage the destruction would be going far to say that a tax on of herring for manure, and to preserve them for food for man or for salmon, and to that end imposes a greater tax upon that part of the plaintiff's industry than upon similar use of other fish or of the offal of salmon, it hardly can be said to be contravening a Constitution that has known protective tariffs for a hundred years. Rast v. Van Deman & L. Co. 240 U. S. 342, 357, 60 L. ed. 679, 687, L.R.A. 1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455. Even if the tax should destroy a business, it would not be made invalid or require compensation upon that ground alone. Those who enter upon a business take that risk. McCray v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561. See Quong Wing v. Kirkendall, 223 U. S. 59, 56 L. ed. 350, 32 Sup. Ct. Rep. 192; Mugler v. Kansas, 123 Ū. S. 623, 31 L.

fish-oil works in general terms imported a license to a specific kind of works deemed undesirable by the local powers, and when we take into account the express and unlimited authority to impose additional taxes and licenses we are satisfied that the objection should not prevail. We confine our decision to the statutes before us, repeating in this connection that they must be judged by their contents, not by the characterization of them in the complaint.

The requirement of uniformity in § 9 is disposed of by what we have said of the classification when considered with reference to the Constitution. The legislature was [50] warranted in treating the making of oil and fertilizer from herring as a different class of subjects from the making of the same from salmon offal. The provisions against

taxing in excess of 1 per centum of the assessed valuation of property do not apply to a license tax like this. This is not a property tax. Alaska Pacific Fisheries v. Alaska, 149 C. C. A. 262, 236 Fed. 52, 61. The objection that the plaintiff in error is doubly taxed, first by the United States and then by the territory, is answered by the express authority to levy additional taxes. to which we have referred heretofore. Without going into more detail, we are of opinion that the tax must be sustained. Judgment affirmed.

STARK BROTHERS NURSERIES &
ORCHARDS COMPANY, Petitioner,

V.

WILLIAM P. STARK and William H.
Stark, Trustees, Doing Business under the
Name and Style of William P. Stark

Nurseries.

(See S. C. Reporter's ed. 50-52.)

Trademark
ment -
limitation to date of notice.

0%

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a decree which modified, and affirmed as modified, a decree of the District Court for the Western District of Missouri in favor of plaintiff in a trademark infringement suit. Affirmed.

See same case below, 168 C. C. A. 221, 257 Fed. 9.

The facts are stated in the opinion. Mr. Andrew B. Remick argued the cause and filed a brief for petitioner.

Mr. Xenophon P. Wilfley argued the cause and filed a brief for respondents.

Mr. Justice Holmes delivered the opinion of the court:

This is a suit brought September 11, 1916, in the district court of the United States by the petitioner, a Missouri corporation, against citizens of Missouri, for an infringement of a trademark, "Stark Trees," registered under the Act of Congress of February 20, 1905, chap. 592, 33 Stat. at L. 724, Comp. Stat. § 9185, infringe- 9 Fed. Stat. Anno. 2d ed. p. 747, and damages amendments. The district court found infringement and unfair competition, granted an injunction, and made a decree for an account of profits from March 11, 1914, when the infringement began, limiting the damages, however, to those suffered after August 26, 1916, that being the date when the plaintiff gave the defendant notice of the registration of the mark. The circuit court of appeals concurred with the district court as to the facts, but limited the account as well as the damages to the date when notice was given of the registered mark, a few days before the bringing of this suit. 248 Fed. 154, 168 C. C. A. 221, 257 Fed. 9. This limitation is the only question here.

Both the account of profits and the damages in a suit for the infringement of a registered trademark, brought in a Federal district court without diversity of citizenship, are limited to the date when notice was given of the registered mark, by the Trademark Act of February 20, 1905, § 28, which makes it the duty of the registrant to give notice to the public by attaching certain specified words or abbre viations to the trademark, or to the recep; tacle wherein the article is inclosed, and provides that "in any suit for infringement by a party failing so to give notice of regitration no damages shall be recovered except on proof that the defendant was duly notified of infringement and continued the same after such notice," notwithstanding an earlier notice calling on the defendant "to discontinue the unfair competition and infringement on our rights," and the wilful character of defendants' wrongdoing. [For other cases, see Trademark, VI. Ac counting Damages, VI. t, in Digest Sup Ct. 1908.]

[No. 171.]

By § 28 of the Trademark Act it is made the duty of the registrant to give notice to the public by attaching certain specified words or abbreviations to the trademark, or to the receptacle wherein the article is inclosed; "and in any suit for infringement by a party failing so to give notice of registration no damages shall be recovered, except on proof that

Argued January 21, 1921. Decided January the defendant was duly notified of in

31, 1921.

Note. As to infringement of trademark, generally-see notes to Lawrence Mfg. Co. v. Tennessee Mfg. Co. 34 L. ed. U. S. 997; Coats v. Merrick Thread Co. 37 L. ed. U. S. 847; and Dr. S. A. Richmond Nervine Co. v. Richmond, 40 L. ed. U. S. 155.

fringement, and continued the same after such notice." 33 Stat. at L. 730, chap. 592, Comp. Stat. § 9514, 9 Fed. Stat. Anno. 2d ed. p. 789. The infringement that is sued for is infringement of a registered trademark, not infringement [52] of a trademark. That is the plain meaning of the above words and the necessary scope of this suit, since that is the scope

1920.

HOGAN v. O'NEILL.

52

of the jurisdiction of the district court., of a specified county court of Massachusetts A. Leschen & Sons Rope Co. v. Broderick in the caption, and charging that, on a & B. Rope Co. 201 U. S. 166, 172, 50 L. specified date, the accused conspired tochattels of a specified banking corporation, ed. 710, 712, 26 Sup. Ct. Rep. 425. It gether to steal the property, goods, and seems very plain that the plaintiff had a must be deemed to charge the commission cause of action outside the statute, but of a crime within the state, in view of the that would have to be asserted elsewhere, provision of Mass. Rev. Laws, chap. 218, as the suit was between citizens of the § 20, that the time and place of the comThe statute alone gave the mission of a crime need not be alleged unsame state. right to come into this court of the United less it is an essential element of the crime; that the name of the county and court in States. Coming in to assert its statutory the caption shall, unless otherwise stated, an allegation that the rights, we will assume in the plaintiff's be considered as favor that it could recover for unfair act was committed within the territorial competition that was inseparable from jurisdiction of the court, and that all althe statutory wrong, but it could not reach legations of the indictment shall, unless back and recover for earlier injuries to otherwise stated, be considered to refer to the same time and place. see Indictment, II. a, in rights derived from a different source. Digest Sup. Ct. 1908.] The plaintiff argues that a notice of [For other cases, Evidence judicial notice March 11, 1914, calling on the defendants 2. Federal courts on habeas corpus to "to discontinue the unfair competition and infringement on our rights," coupled with review interstate extradition proceedings the wilful character of the defendants' will take notice of the laws of the demandwrongdoing, ought to lead to a different ing state. result, and the district judge seems to But that is have had a similar notion.

to forget the origin and necessary limit
of the jurisdiction in this case.
Decree affirmed.

CHARLES K. HOGAN, Appt.,

V.

WILLIAM H. O'NEILL, Chief of Police of the City of East Orange, New Jersey.

(See S. C. Reporter's ed. 52-56.)

Indictment

sufficiency

place of

crime.
1. An indictment containing the name

Note. On what papers are necessary to obtain surrender of fugitive from other state-see note to Ex parte Hart, 28 L.R.A. S03.

On right of court of asylum state, in interstate extradition proceedings, to examine sufficiency of indictment-see note to Re Waterman, 11 L.R.A. (N.S.) 424.

On judicial notice, generally-see note to Olive v. State, 4 L.R.A. 33.

On judicial notice in Federal courts of state laws, and of laws previously prevailing in acquired countries-see note to M'Niel v. Holbrook, 9 L. ed. U. S. 1909. On practice and procedure in extradition cases-see notes to Kentucky v. Dennison, 16 L. ed. U. S. 717; Cook v. Hart, 36 L. ed. U. S. 934; and Iasigi v. Van de Carr, 41 L. ed. U. S. 1046.

|

laws.

indictment.

review extradition

4. The sufficiency of the indictment as
a pleading is not open to inquiry on habeas
corpus to review the issuance of a warrant
of arrest in interstate extradition proceed-
ings.
Habeas Corpus, II. b,
[For other cases, see
in Digest Sup. Ct. 1908.]

L.R.A. 616; and Tinsley v. Anderson, 43
L. ed. U. S. 91.

On habeas corpus to review extradition proceedings-see notes to State v. Jackson, 1 L.R.A. 373; Ex parte Davis, 12 L.R.A. (N.S.) 225; Com. ex rel. Flower v. Superintendent of County Prison, 21 L.R.A. (N.S.) 939; Wisener v. Burrell, 34 L.R.A. (N.S.) 755; and Oteiza y Cortes v. Jacobus, 34 L. ed. U. S. 464.

On questions reviewable by habeas corpus-see notes to State v. Jackson, 1 L.R.A. 373; Bion's Appeal, 11 L.R.A. 694; United States v. Hamilton, 1 L. ed. U. S. 490; Re Carll, 27 L. ed. U. S. 288; Oteiza y Cortes v. Jacobus, 34 L. ed. U. S. 464; and Pearce v. Texas, 39 L. ed. U. S. 164.

As to who are fugitives from justicesee notes to Cook v. Hart, 36 L. ed. U. S. On habeas corpus in the Federal courts 934; Bassing v. Cady, 52 L. ed. U. S. -see notes to Re Reinitz, 4 L.R.A. 236;510; State v. Hall, 28 L.R.A. 289; and State ex rel. Cochran v. Winters, 10 Ex parte Williams, 51 L.R.A. (N.S.) 668.

32

497

APPEAL, from the District Court of governors of the states, where, when