(39 Sup.Ct.) was cut or removed for use in the state by a LAND OFFICER. AUTHORITY OF An official of the General Land Office has road company under Act March 3, 1875 (Comp. no authority to enlarge the rights of a railSt. §§ 4921-4926), to necessary timber from public lands for construction of road, so as to give right to cut and sell timber from the remaining slashings. Appeal from the Court of Claims. duct of their work, he could not properly have been deemed to be in any sense a participant in their work. But the fact was otherwise. He was employed in a camp car which belonged to the railroad company, and was moved about from place to place along its line according to the exigencies of the work of the bridge carpenters, no doubt with the object and certainly with the necessary effect of forwarding their work, by permitting them to conduct it conveniently at points remote from their homes and remote from towns where proper board and lodging were to be had. The circumstance that the risks of personal injury to which plaintiff was subjected were similar to those that attended the work of train employés generally and of the bridge workers themselves when off duty, while not without significance, is of little moment. The significant thing, in our opinion, is that he was employed by defendant to assist, and actually was assisting, the work of the bridge carpenters by keep-ed (53 Ct. Cl. 33), and plaintiffs appeal. Afing their bed and board close to their place of work, thus rendering it easier for defendant to maintain a proper organization of the bridge gang and forwarding their work by reducing the time lost in going to and from their meals and their lodging place. If, instead, he had brought their meals to them daily at the bridge upon which they happened to be working, it hardly would be questioned that his work in so doing was a part of theirs. What he was in fact doing was the same in kind, and did not differ materially in degree. Hence he was employ ed, as they were, in interstate commerce, within the meaning of the Employers' Idability Act. Judgment affirmed. (250 U. S. 14) CALDWELL et al. v. UNITED STATES. Action by L. G. Caldwell and another, copartners trading as Caldwell & Dunwody, against the United States. Petition dismiss firmed. Mr. William C. Prentiss, of Washington, D. C., for appellants. Mr. Assistant Attorney General Frierson, for the United States. * Mr. Justice MCKENNA delivered the opinion of the Court. This action was brought by appellants to recover the value of certain timber cut from the public lands of the United States in the state of Colorado, called "tie slash" or "tie slashing," the term being used to describe the tops of trees the bodies of which have been used for making railroad ties. The right of recovery is based upon contracts with the Denver, Northwestern & Pacific Railway Company which had been given the right to cut timber upon the public lands adjacent to the line of its road by the Act of Congress of March 3, 1875, c. 152, (Submitted April 23, 1919. Decided May 19, 18 Stat. 482 (Comp. St. §§ 4921-4926). 1919.) No. 325. 1. PUBLIC LANDS 93-GRANT OF "TIMBER" FOR RAILROAD. The Court of Claims sustained a demurrer to the petition and dismissed it. To review that action this appeal has been prosecuted. Appellants were, in June, 1906, by due appointment of the railway company, its timber agents, to cut timber from the public Act March 3, 1875 (Comp. St. 88 49214926), granting to a railroad right to take from public lands adjacent to its right of way "tim-lands for construction of the railroad under ber" necessary for construction of road, must be construed strictly, and so gives no right to slashings for commercial use remaining from trees cut for ties. the act of Congress, and by agreement with the company they were given all of the "tie slash" of the trees cut down for the purpose. Pursuant to the contract, and prior to October, 1906, they manufactured and delivered to the company 88,797 ties, which left a [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Timber.] 2. PUBLIC LANDS 11-CUTTING TIMBER-large amount of “tie slash." STATUTE. Act March 3, 1891, § 8 (Comp. St. § 5114), providing that in prosecutions for trespass on public timber lands, or to recover timber or lumber cut, it shall be a defense that timber By a letter from one N. J. O'Brien, describing himself as "Chief, Field Division, G. L. O.," and expressed to be by instructions from the Commissioner of the General Land Office, there was granted to appellants au For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes thority to cut timber under the act of Congress and "to sell and dispose of all tops and lops of trees that" they "might cut for construction" of the road which could not be used for road construction purposes. Inquiry first was to be made of the officers of the railway company if they would purchase the tops and lops appellants had on hand. The letter contained a ruling of the Land Office that contractors should confine their cutting strictly to such timber as was needed by the railway company and that such "refuse" as resulted from such cutting might "be disposed of by the railroad company or by the contractors without violation of existing law." A violation of the law, it was stated, would require a notice to the company to nullify the contract and agency and would subject the contractors to be proceeded against "as in ordinary cases of timber trespass." Thereafter appellants entered into another contract with the company under which they manufactured additional ties and delivered them to it, and a further amount of "tie slash" was left. A large amount of this appellants agreed to sell to the Fraser River Timber Company of Denver, Colorado, and to the Leyden Coal Company of the same place they sold 200 cars of mining props cut by them from the "tie slash," all to be used in the state of Colorado. March 7, 1907, the land from which the ties had been cut was by presidential proclamation included in the Medicine Bow National Forest and the officers of the Forest Service permitted appellants to remove the poles already cut from the "tie slash" and also to have all of tops and refuse on the so-called "fireguard" 200 feet wide along the railway for a distance of two miles, but refused to allow them to have any of the remainder of the "tie slash," and took possession of and sold it; and the proceeds were covered into the Treasury of the United States. To recover the sum of the proceeds thus covered into the Treasury, or such other amount as might be found to Mave been received by the United States from such sale, this action was brought. analogy," and from these appellants argue that the railway company was entitled to the "tie slash" as incident to its right to cut under the act of Congress. They adduce United States v. Cook, 19 Wall. 591, 22 L Ed. 210; Shiver v. United States, 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231; Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127. The instances of the cases, however, are not in analogy to that of the case at bar. In the first the right was given to Indians as a legitimate use of land reserved by them from the cession of a larger tract to the United States, the right of use and occupancy being unlimited. The second case involved the cutting and sale of timber by a homesteader and they were considered a use of the land, his privileges with respect to standing timber being analogous to those of a tenant for life; the third case was of like kind, and the other two cases were cited. Other cases referred to by appellants struggled with the problem without solving it and we need not review or comment upon their reasoning nor consider some state cases. The contention of appellants encounters the rule that statutes granting priviléges or relinquishing rights are to be strictly construed; or, to express the rule more directly, that such grants must be construed favorably to the government and that nothing passes but what is conveyed in clear and explicit language inferences being resolved not against but for the government. Wisconsin Central Railway v. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399; United States v. Oregon, etc., Railway, 164 U. S. 526, 17 Sup. Ct. 165, 41 L. Ed. 541. And the government invokes the rule in the present case and cites in implied support of the invocation United States v. Denver, etc., Railway, 150 U. S. 1, 14 Sup. Ct. 11, 37 L. Ed. 975, and in express *support of it United States v. Denver, etc., Railway (C. C.) 190 Fed. 825, 826. And these cases were cited by the Court of Claims for its judgment. The rule, it seems to us, is particularly applicable. There was a grant of timber by the Act of March 3, 1875, not of trees, but of timber for purposes of railroad construction, not as a means of business or of profit; nor could it be made an element, as contended, of compensation to the agents employed to cut it. [1] The elements for consideration are not many. The first of these is the act of 1875, supra. It grants a right of way to the railway company [the grant is to railroad companies of a certain description-we make it particular for convenience] through the [2] Appellants invoke the Act of March 3, public lands of the United States to the ex- 1891, c. 561, 26 Stat. 1095, 1099, in justificatent of 200 feet on each side of its central tion and as giving them a right independentline, and the right to take from the public ly of their asserted right derived through lands adjacent to its line tim- the railway company. Section 8 of that act ber necessary for the construction of said (Comp. St. § 5114) provides that in criminal railroad." The right given is to take "tim- prosecutions for trespass on public timber ber," and this, it is argued, necessarily lands in Colorado (and some other states) means "trees," and as there is no provision or to recover timber or lumber cut, it shall for disposition of what shall be left of them be a defense to show that the timber was after using such portions for railroad pur- cut or removed from the lands for use in the poses, it must be determined by "reason and state by a resident thereof for agricultural, * (39 Sup.Ct.) Messrs. John Lowell, of Boston, Mass., and Frank W. Hackett, of Washington, D. C., for appellants. mining, manufacturing or domestic purposes States. Petition dismissed (53 Ct. Cl. 210), under the rules of the Interior Department, and plaintiffs appeal. Affirmed. and had not been transported out of the state. But it is provided that nothing in the act contained shall operate to enlarge the rights of any railway company to cut timber on the public domain, and there are other provisions giving the Secretary of the Interior the power to designate the tracts from which the timber may be cut or to prescribe the rules and regulations for the cutting. We think it is clear that appellants are not within the provisions of the act. They are not and were not in the designated classes nor contemplated the uses which the act protects. They were agents of the railway company for so much of the timber as was to be used in railroad construction; of what was left they were simply vendors for profit. To enable them to so use the act or to use it for any but the designated purposes would be a violation of that provision of the act which forbids its operation *"to enlarge the rights of any railway company to cut timber on the public domain"; it would make the act available to a railroad as a means of profit or other purpose than road construction. And its value would be a temptation to do so. In this case it is alleged that the value of the "tie slash" that the officers of the Forest Service took possession of (it was only part of that which was cut) "was, and is, $26, 454.90." [3] Finally, appellants rely upon the letter of the Chief, Field Division, General Land Office, supra. The immediate answer is that made by the Court of Claims: the want of power in the officer to enlarge the Act of March 3, 1875, and to give rights in the puolic lands not conferred by it. Judgment affirmed. Mr. Justice McREYNOLDS took no part in the decision. (250 U. S. 1) No. 381. EMINENT DOMAIN 2(1)-TAKING-FIRING Facts of case, in which recovery was sought on the ground of taking, because of cannon fir ing across land, held not to differentiate it from Peabody v. United States, 231 U. S. 530, 34 Sup. Ct. 159, 59 L. Ed. 351, where it was held that there was no taking. Appeal from the Court of Claims. Mr. Assistant Attorney General Brown, for the United States. Memorandum opinion by the CHIEF JUSTICE. Recovery was sought in the court below from the United States for property taken by it as the result of the alleged firing of guns in a fortification on the coast of Maine and the passing of the projectiles over and been taken. The court, finding that a former across a portion of the land alleged to have case by it decided against the owners and here affirmed (Peabody v. United States, 231 U. S. 530, 34 Sup. Ct. 159, 58 L. Ed. 351), for taking of the same land resulting from instances of gun fire resulting from the same fort and guns, was identical with this except for some occasional subsequent acts of gun fire, held that case to be conclusive of this and rejected the claim on the merits Coming to consider this action of the court in the light of the findings by it made, we are constrained to the conclusion that it was right, and that no possible difference exists between this and the Peabody Case. Before applying this conclusion we say that we find that the record discloses no ground for the applications here made to remand and for additional findings. Judgment affirmed. (250 U. S. 111) (Argued April 17, 1919. Decided May 19, 1. COURTS 394(1)-ERROR TO STATE Court To give the Supreme Court jurisdiction of error to state court under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. 1918, § 1214), mere assertion of a claim in respect of some constitutional right is not enough, but there must be a real and substantial controversy of the required character which deserves serious attention. 2. COURTS 394(9)—Error TO STATE COURT CASE INVOLVING CONSTITUTIONALITY OF STATUTE. Where opinion of state Supreme Court makes no reference to state statute in support of decision, but supports its conclusion by its opinions prior to such statute, relevant and tending to uphold the doctrine applied, the case is not one in which validity of the statute, claimed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to impair obligation of contract, is drawn in [the state of Oklahoma alleged by the plaintiff question, and decision is in favor of validity, in error to impair the obligation of its conso as to give National Supreme Court jurisdic- tract." tion of error to state court, under Judicial Code, 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. 1918, § 1214). But we have often held that mere assertion of a claim in respect of some constitutional right is not sufficient; there must be In Error to the Supreme Court of the a real and substantial controversy of the State of Oklahoma. required character which deserves serious consideration. Ennis Waterworks v. City of Ennis, 233 U. S. 652, 658, 34 Sup. Ct. 767, 58 L. Ed. 1139. Counsel for plaintiff in error further say: "Our position is that under this bond and the statutes in force at the time it was executed a contract was created between the state, the Columbia Bank & Trust Company, and the United States Fidelity & Guaranty Company, pursuant to which the Guaranty Company was liable to the state *for such loss as it might sustàin by reason of the failure of the Trust Company; that the Guaranty Company was entitled to exoneration from the Trust Company Mr. Justice McREYNOLDS delivered the and to contribution from the guaranty fund; opinion of the Court. May 18, 1909, plaintiff in error became surety upon a bond to secure repayment of funds to be deposited by *commissioners of the land office of Oklahoma with the Columbia Bank & Trust Company. After receiving more than $50,000 the Trust Company became insolvent, and in September, 1909, refused to honor a proper demand therefor. The state sued the surety in one of its own courts, December 24, 1909, and judgment there for full amount of the bond was affirmed by the Supreme Court October 9, 1917. 168 Pac. 234. [1, 2] The cause is here on writ of error, and jurisdiction of this court is challenged upon the ground that the suit is not one "where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity.” Judicial Code (Act March 3, 1911, c. 231) § 237, 36 Stat. 1156, as amended by Act Sept. 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. 1918, § 1214). We think the point well taken, and the writ must be dismissed. In support of our jurisdiction it is said: "The case is properly here by writ of error because it involves the validity of legislation of and that this contract was impaired by the Act of March 6, 1913." Section 9, c. 22, Session Laws 1913. It provides: ed, shall be protected by, or paid out of, the "No deposit in a state bank, otherwise securdepositors' guaranty fund created under the laws of the state of Oklahoma, nor included in the computation of average daily deposits as a basis for assessments. No deposit in any state bank, on which a greater rate of interest is allowed or paid, either directly or indirectly, than is permitted by the rules of the bank commissioner, shall participate in the benefits of the guaranty fund." The opinion of the Supreme Court makes no reference to the Act of March 6, 1913, and we can discover no plausible basis for the argument that, notwithstanding such omission, force and effect was really given thereto-that it must have been the basis of the decision. The court approved, and undertook to support its conclusion by former opinions, commencing with Columbia Bank & Trust Co. v. United States Fidelity & Guaranty Co., 33 Okl. 535, 126 Pac. 556, decided in 1912, which, it declared, show a consistent view contrary to the position maintained by plaintiff in error. And an examination of these opinions leaves no doubt that they are relevant and tend to uphold the doctrine applied in the present cause. We find nothing to indicate a purpose to give effect to the specified act. Dismissed. 08 (39 Sup.Ct.) (250 U. S. 28) (Submitted April 24, 1919. Decided May 19, No. 326. 1. APPEAL AND ERROR 1094(2)-REVIEWFINDING OF Two Courts. Both the lower courts having found for defendant in suit to restrain use of trade-mark as infringing plaintiff's or as used in a way calculated to deceive and unfairly to interfere with plaintiff's good will, the only question that the Supreme Court will consider is whether on inspection it can be said as matter of law that defendant's admitted acts are a wrong of which plaintiff can complain. 70(4)| the only question that we shall consider is whether upon inspection it can be said as matter of law that the admitted acts of the defendant are a wrong of which the plaintiff can complain. [2-4] Both parties sell beer in brown bottles with brown labels and the plaintiff conceded below and still with some unwillingness seems to concede that, although perhaps it first introduced them in this connection and this place, it cannot claim the brown bottle, the brown label, or the two combined. These could be used without a warning, such as sometimes is required, that the beer was not the plaintiff's. The only question is how the additional element, the form of the inscription, should be treated. It often is said that the plaintiff must show a deception 2. TRADE-MARKS AND TRADE-NAMES arising from some feature of its own not -UNFAIR COMPETITION-IMITATION-COLOR. common to the public. United States ToOne first selling beer in brown bottles with bacco Co. v. McGreenery (C. C.) 144 Fed. 531, brown labels has no exclusive right to such use, 532, cited by the court below. But so stated but another may use them without warning that the proposition may be misleading. It is not necessary that the imitation of the plaintiff's 70(4) feature taken alone should be sufficient to deceive. It is a fallacy to break the fagot stick by stick. It would be enough if taken with the elements common to the public the inscription accomplished a result that neither New England Awl & Needle Co. v. Marlborough Awl & Needle Co., 168 Mass. 154, 156, 46 N. E. 386, 60 Am. St. Rep. 377. the beer is not that of the first user. While to entitle plaintiff to relief the deception of the public must be from imitation of some feature of its label which is not com mon to the public, it is enough that it does so taken in connection with such common features, though it could not but for such special background lawfully used. 4. TRADE-MARKS AND TRADE-NAMES -UNFAIR COMPETITION-IMITATION. 70(4) Label on the beer bottles of the Houston Ice & Brewing Company held in view of difference in shape, in application, and in script, both as to meaning and picture, not to imitate that on those of the Joseph Schlitz Brewing Company so as to deceive the public. Mr. Justice McKenna and Mr. Justice Pitney, dissenting. On Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit. would alone. But it is true that the unlawful imitation must be what achieves the deception, even though it could do so only on the special background lawfully used. The question again narrowed is whether that is the case here. The shape of the defendant's label is different from the plaintiff's; the script upon it not only is wholly different from the other in meaning, to one who reads the two, but hardly can be said to resemble it as a picture. The two labels are attached to the bottles in quite unlike modes. The Schlitz is applied in a spiral around the length of the bottle so as to make the ends of the label parallel to the sides of the glass. The defendant's is pasted around the bottom of the bottle in the usual way. This diversity of itself renders mistake unlikely. If there were deception it seems to us that it would arise from beer Mr. Russell Jackson, of Milwaukee, Wis., and brown color and that it could not be said for petitioner. that the configuration appreciably helped. Mr. H. M. Garwood, of Houston, Tex., for Coats v. Merrick Thread Co., 149 U. S. 562, respondents. Suit by the Joseph Schlitz Brewing Company, against the Houston Ice & Brewing Company and others. Decree for defendants was affirmed by the Circuit Court of Appeals (241 Fed. 817, 154 C. C. A. 519), and plaintiff brings certiorari. Affirmed. 573, 13 Sup. Ct. 966, 37 L. Ed. 847. Beyond stating the principles to be applied there is Mr. Justice HOLMES delivered the opinion little to be said except to compare the imof the Court. pression made by the two, or, if that form of statement is preferred, the memory of Schlitz with the presence of the defendant's bottles as marked. Decree affirmed. [1] This is a bill in equity brought to restrain the use of a trade-mark alleged to infringe the plaintiff's or at least to be used in a way that is calculated to deceive and unfairly to interfere with the plaintiff's good will. Both courts have found for the defendant (241 Fed. 817, 154 C. C. A. 519), so that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 39 SUP.CT.-26 Mr. Justice MCKENNA and Mr. Justice PITNEY dissent. |