111 N.Y.S. 749 | N.Y. App. Div. | 1908
Lead Opinion
The defendant was convicted of a violation of subdivision 6 of section 364 of 'the Penal Code,
The Wilson Distilling Company manufactures whisky which it places in bottles bearing its trade mark and label, which indicate that it is the manufacturer, producer and bottler of the whisky contained therein. 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. The purpose of the trade mark provisions is not only to protect the manufacturer, but also to protect the public. The manufacturer is protected against unfair competition. The public is insured in getting what it wants and what it pays for.
The defendant, a bartender in a saloon, sold certain drinks upon a request for Wilson whisky from a Wilson whisky bottle bearing the trade mark and label of the Wilson Distilling Company. He then refilled said bottle from a demijohn and sold other drinks upon request for Wilson whisky from the same bottle after it had been so refilled by him. Thus he represented both by word and deed that the whisky so sold by him was the product of the Wilson Distilling Company, at the time well knowing that it was not contained in the original trade marked and labeled package of the
The appellant claims that by reason of the failure to prove that the whisky sold was not Wilson whisky, no crime was made out. He also claims that if the law is so to be construed as to make the acts proved constitute a crime, then the act is unconstitutional as in violation of article 1, sections 1 and 6, of the Constitution of the State and the 14th amendment, section 1, of the Constitution of the United States.
It is suggested that the statute means that the person selling the goods must know that what he sells is not the article that it purports to be; that he must be guilty of fraud, and that, as there is no proof that the article sold was not Wilson whisky, the crime was not proved; that there was no intent to defraud established.
I cannot so read the statute. Subdivision 5 of the same section (Penal Code, § 364) provides that “a person who knowingly * * makes or sells, or offers to sell or dispose of, or has in his possession with intent to sell or dispose of, an article of merchandise with such a trade-mark as to appear to indicate the quantity, quality, character, place of manufacture or production, or persons manufacturing or producing the article, but not indicating it truly * * * ” is guilty of a misdemeanor. By this provision, selling whisky which is not Wilson whisky in or from a bottle bearing the Wilson trade mark is prohibited. To adopt the construction suggested would be to interpret the two successive subdivisions as providing for the same offense. This is not reasonable and offends that canon of statutory construction which requires meaning to be given to all the language of a statute when possible. The meaning is clear and unambiguous and forbids the precise thing proven in this case — the refilling of a trade marked original package, even with like goods, and selling therefrom with the representation that it is the original package. Neither is “ fraudulently ” to be imported into the statute, nor is “ knowingly ” to be applied to the illegality of the act. If the goods are so sold by one knowing that the package has been refilled, the statute is satisfied. Section 718, subdivision 4, of the Penal Code provides that “ the term ‘ knowingly ’ imports a knowledge that the facts exist which constitute the act or omission a crime, and does not require a knowledge of the unlaw
The appellant claims that the act is unconstitutional in that it deprives him of his property without due process of law, the argument being that, having bought the goods, he is entitled to sell them as and how he pleases; that if he choose, he may pour the whisky from one labeled and trade marked bottle into a demijohn, and from that demijohn fill other labeled and trade marked bottles, and then sell those refilled, or from those refilled bottles when and as he pleases, and to deprive him of that right by making it a criminal offense so to do is a deprivation of property, namely, the use and disposal of property, without due process of law.
That argument, carried to its logical conclusion, would destroy all the statutes providing for the protection of trade marks. Why should not á man be allowed to use his property as he will, to use any trade mark, to affix a well-known mark to any product, to refill old bottles with a foreign substance and sell it under another man’s label, mark and reputation ? All of these provisions are made to prevent fraud on manufacturers who, by their skill and' care, have established a reputation for their goods, and to prevent fraud on the customer who buys on the credit of the trade mark and label. In this age of canned, bottled and packed goods, the assurance to the public that the goods asked for and received have been packed in the identical package by the manufacturer is as important as that they have been manufactured by him. This assurance is given by the marks and labels. It seems to me a.proper legislative requirement, warranted under the general police powers of the State for the purpose of protecting the public against fraud, imposition and deception. If the Legislature has the power, which the appellant concedes, to forbid trade marked packages from being filled with goods not made by the owner of the marks and sold under the representation that they are that manufacturer’s product, wliy has it
It follows that the judgment appealed from should be affirmed.
Scott, J., concurred; Ingraham and McLaughlin, JJ., dissented.
See Laws of 1889, chap. 45. Since amd. by Laws of 1908, chap. 427.— [Reo
Dissenting Opinion
The defendant was convicted of a misdemeanor for violating section 364 of the Penal Code. He was a bartender and the evidence, in brief, is to the effect' that lie sold, as Wilson whisky, whisky from a Wilson whisky, bottle which was refilled when emptied from a demijohn underneath the bar. There was no evidence that the whisky sold from this bottle was not Wilson whisky. The learned district attorney, at the trial, stated that he was ready to offer evidence of the “taste test,” but no such proof was in fact offered, and the sole question presented by this appeal is whether subdivi- . sion 6 of section 364 of the Penal Code applies to the facts proved, and if so, whether it is constitutional. •
The statute
If the 'statute is to be construed in the manner set forth in the prevailing opinion, it may well be doubted whether it is constitutional, in that it confiscates a property right. (Wynehamer v. People, 13 N. Y. 378.) If the original packages are destroyed or injured to such an extent that the goods contained therein cannot be sold therefrom, through no fault of the seller, then he is prohibited from selling them as the goods of the maker which might well constitute a large part of their value. But it is not now necessary to pass upon this question, inasmuch as the statute does not apply to the facts proved.
The judgment of conviction, therefore, should be reversed and a new trial ordered.
Ingraham, J., concurred.
See Laws of 1889, chap. 45. Since amd. hy Laws of 1908, chap. 427.-^[Rep.
Concurrence Opinion
I concur in the affirmance of the judgment of' conviction. I think the People made a prima facie case of violation of the statute by proving that, the “ Wilson ” whisky bottle was refilled from another and different receptacle. If the defendant desired to
The aim of the statute is to prevent imposition and the sale of one'thing purporting to be another. I think the statute applies -to broken packages, but I do not think it is violated by putting two broken packages of the same brand together arid making one. The defendant did not do. this, but filled, a “ Wilson ” whisky bottle from a different package, and was, therefore, properly convicted.
Judgment affirmed, with costs.
