UNITED STATES 'IJ. O'CONNOR.

44.9

does not constitute inability to take care of themselves, nor is it necessarily conclusive evidence of it. Its force is as evidence only in respect to the ultimate fact which the commissioners are called on to decide, viz., whether these immigrants were" unable to take care of themselves;" and that question, it is clear from the testimony, the board has never yet determined. It is very plain, therefore, that no legal cause is shown for detaining the prisoners for the purpose of sending them back; because the board has not found anyone of the facts that are the legal conditions of the statutory inhibition. As the immigrants, however, are still in the custody of the commissioners, the board has still power to make a further examination in respect to the facts submitted to its determination by the statute. The · commissioners alone have the authority to determine these facts, upon a proper examination and finding. Such was the ruling of this court.,in the Case of Day, 27 Fed. Rep. 678. If the board, upon any proper amination, finds that the immigrants" are unable to take care of themselves without becoming a public charge," and so reports to the collector,' that is conclusive. If the commissioners, therefore, desire to make any finding or report upon this question, they are authorized to do so; and this proceeding will be suspended for that purpose, or the prisoners remitted to the custody from whence they were taken, until the lapse of a reasonable time for that purpose, as counsel may elect. Several of the commissioners being present in court, after a consultation among themselves with their counsel, it was stated to the court that they did not wish to make any further examination or finding; and thereupon the immigrants were discharged.

UNITED STATES 'IJ. O'CONNOR.

(DiBtriet Court, E. D. MiBs,uri, E. D. June 3, 1887.)
1.

The third clause of section 5512, Rev. St., Irovides that "if at any registra· tion of voters for an election for a repre,entative or delegate in the congress of the United States any person knowingly personates and ngisters. or at· tempts to register. in the name of any person, whether liVing, dead, or fictitious. or fraudulently registers, or fraudulently attempts to register. not hav· ing a lawful right so to do. or does any unlawjul act to secure regiatrationjor himself. 0'1' any other person. * * * every such person shall be punished as prescribed in the preceding section." Held. on demurrer to an indictment under this section, that where a count charged, in effect, that, in order to secure registration for one B .· defendant wrote the name of said B. in the registration book, it would be inferred that said B. was a real and not a fictitious person. S. SAME-SECTION 5512, REv. ST.-"UNLAWFUL ACT "-SESS. LAWS Mo. 1883, PAGE 38. In an indictment under this section. the only unlawful act charged to have been committed by the defendant consisted in writing the names of various persons in the registration book while the same was in use for the purpose
ELECTIONS-EltAUDULENT REGISTRATION-INDICTMENT-SECTION 5512, REv.ST.

v.31F.no.8-29

450

FEDERAL REPORTER·

..Q(registration by the recorder of voters for the Tenth ward of the city of St. I"Oqis.. ;:Missouri. Held, that said act was "unlawful, "'within the meaning of the statute, when impliedly prohibited by a statute of Missouri, (Sess. Laws, 1888, p. 3S,) which created a system of registration for the city of St. Louis. Demurrer to Indictment under Rev. St. U. S. § 5512, for Fraudulent Registration. , 3C11fM8 O.Broadhead, D. P.Jj)yer, and Thmna8 P. Bashaw, for the United States. . Krurn & Jonas, for defendant. THAYER,J. This is an ihdictment under the third cla,use of section 5512 of the Revised Statutes of the United States, which reads as follows: "If at any registration of voterl;l for an election for a representative or delegate in the congress of the United States any person knowingly personates and registers, or attempts to register, in thenameof any person, whether living, dead. or fictitious, or fraudulently registers, or fraUdulently attempts to register, not haVing a lawful right so to do. or does any unlawful act to ,(!C;ure for h1mself. or any othl:rper80'fI,· . * * * every such be punished as pl'escribed in the section. IJ person The of the indictment charges, in substance, that at a registration for a congressional eleotion, to be held in the Ninth sional district of the state of Missouri in November, 1886, the defendant, in order to secure registration for one Victor Balm as a voter at said congressional election, didunlawfl!llly and falsely write on the registration book then being used, by the duly appointed and qualified recorder of voters of the Tenth ward of the city of St. Louis, within said congressional district, the name of said Victor Balm, whereby it was made to appear on said registration book that said Victor Balm had applied to said recorder of voters for registration, and had taken the oath required of persons seeking registration; whereas, in truth and in fact, he had neither applied for registration, or taken the oath in that behalf required, as the said defendant well knew. There are' 21 counts of like tenor to the foregoing, wherein the'deff'l,odant, is accused of unlawfully and falsely writing the names of as many different persons on the registration book for such persons. for the purpose of securing 1. One objection made to the indictment is that it does not show, by any proper arerment, that the persons mentioned in the various counts of the indictment for whom registration was sought were adual persons. It'appears to the court that this objection to the indictment is without lDerit. 'l'hecount charges,in effect, that, in order to secure registration for one Victor Balm, the defendant wrote the name of said Victor Balm in the registration book. The necessary inference from such language is that Victor Balm, whose name was So written, was a real and not a fictitious person,' and that the unlawful act complo.ined of was committed to secure to said Balm (he being an actual person) an opportunity to rote, although. he had Dot duly registered as the law require:::. The same remark will apply to aU the other counts. If the names embraced

UNITED STATES fl. O·CONNOR.

'in the vari.ous counts are not names of real persons, but are fictitious names, and the same were written on the registration book to give persons not mlmed in the indictment an opportunity to vote under such fictitious names, then the pleadel' 'has not correctly stated his case, and proof of such facts would not support the indictment, inasmuch as: indictment avers that the act was committed with a different intent; that is to say ,to secure registration for actual persons whose names are the!eitJ mentioned. 2. The next objection to the indiotment is 1'110re important, and involves a question of some difficulty. The only unlawful act charged to have been committed by the defendant consisted in writing the names of various persons in the registration book whitt! the same was in use for the purpose of registration by the recorder of voters for the Tenth watd ofthe city, of St. Louis. Missouri. It is insisted that the mere writing of the naines of certain persons in the registration book, under the circum'stances alleged, is not an unlawful act, that the act in question is neither malum inse nor mal1Jlm prohibitum, nor such an act as would en. able any person to maintain a civil acti01l for the doing of the same; and consequently that it cannot be regarded as unlawful. It may' be conceded that an act is not unlawful unless it falls within one of the three that the acts classes last mentioned, and inasmuch as it is not described in the various counts· of theindictment are malum in se, or that any individual could maintain a civil suit in consequence thereof, the point to be determined is practically whether such acts have been pro· hibited by statute. At the beginning of the inquiry it may be further conceded that nO statute of this state, or of the United States, in so many words, forbids the writing of names in the registration book in the manner charged tG have been done by the defendant, or imposes a penalty for so doing. The fact, however, that no penalty has been imposed is unimportant, if the act in question has been in effect prohibitedj as an act which is prohibited by law is none the less unlawful, although no penalty is de" nounced. After a careful consideration of the matter, it is my opinion that such acts as are described in the variouscoullt8 of the indictment have been in effect prohibited by the statute creating a system of registration for the city of St. Louis, Missouri. Vide Sess. Laws Mo. 1883, p.38. To brirg a given act within the inhibition of a statute, and render thl! same unlawful, it is not always essential that it should be particularly described, and expreSSly prohibited. If such was the case, laws would either become too prolix, or fail in a great measure to accomplish the intent of the law-maker. A statute often speaks as plainly by inference, means of the purpose which underlies the enactment, as in any and by _ other manner, and whenever it appears by necessary inference from what is expressed, that a given act or acts are opposed to the policy of the law, and will defeat its purpose, or the object had in view by the legislature, such acts should be held to be thereby prohibited. Furthermore, when a statute directs that a thing :sball be done ina given manner, it ordi-

452

FEDERAL REPORTER.

narily excludes all other modes of doing it; and, according to that rule of interpretation, when a statute directs that a public record shall be kept for a certain purpose, and that entries shall be made therein in a certain ,way, it seems obvious that it is unlawful to make entries in such record in any manner other than h!lS been prescribed. Now, the statute which,was before alluded to makes it the duty of the recorder of voters to provide a auitable registration book for each election precinct in the city of St. Louis. Such books have been held to be pUblic records. State v. Hoblitzelle,.85 Mo. 620. They contain the only ,authentic evidence of the persons entitled to exercise the elective franchise within the various voting precincts of the city. They are required to be kept in the custody .of public officers, to-wit, the recorder of voters and his deputies, and penalties are denounced for defacing or mutilating the same, and for permitting the same to pass out of such custody. Persons det:liring to be registered are required to go in person before the recorder of voters, or before the deputy-recorder of the ward where the applicant resides, and take the oath that they have not registered elsewhere; that they have given their true names and place of residence; and, until such oath has been taken, the recorder of voters is not authorized to ent.er the applicant's name on the registration book, or allow it to be so entered. Furthermore, it is declared ro ·be a felony if any person willfully or illegally procures his name to be placed on the registration book without Qeing entitled to have it placed there; and the first step in that direction is to take the oath above-mentioned, which, of course, involves a personal appearance of the voter before the registration officer. Taken together, the foregoing statutory provisions necessarily exclude the idea that names of persons may be lawfully written in a registration book in any other manner than that prescri):>ed by the statute. It would be a strange,result if an individual other than the registration officer might, without violating the law, write the names of divers and sundry persons in the registration book who had neither appeared before the officer or taken the oath, after the legislature has given such careful directions as to the manner in which the names of voters shall be entered therein; and more especially would such an inference seem to be erroneous, bearing in mind the fact that such books are public records, and the uses for which they are designed. I accordingly conclude that the indictment in its various counts charges the defendant with the commission of acts which were clearly. unlawful. 3. It is furthermore suggested that the unlawful act referred to in section 5512, Rev. St. U. S., must be some act which is unlawful, under the laws of the United States; and also that the indictment states no offense, because the mere writing of names on the registration book has no tendency to secure registration for the persons whose names are so written. The first of these objections is answered by the case of Ex parte 'siebold, 100 U. S. 371, in which it was held that congress has power to impose penalties for violating state election laws in case of an election held pursuant to such laws for the election of representatives in congress;

BROWN

CO. v. MYER.

453

and in point of fact many of the penalties imposed by sections 5511, 5512, Rev. St. U. S., are for violation of state election laws, or, at least, the offenses therein described must be determined by reference to local election laws. With respect to the second objection, it is sufficient to Bay that the writing of a person's name on ,a registration book has, in my opinion, a marked tendency to secure registration for such person or persons. It is true that the fraud may be discovered by the registration , officer or the board of revision, if great diligence is exercised, but the tendency of the act to secure a registration for the person whose name is so written that will be effectual on election day cannot be denied. Mv conclusion is that the demurrer to the indictment is not well taken, and that the same should be overruled.

BROWN CHEMICAL Co. v. MYER and others.

(Ot'rcuit Oourt, E. D. Missouri, E. D. June 80, 1887.)
TRADE-MARK-INFRINGEMENT-DECEIVING PUBLIC-SIMILARITY IN NAMES.

Where the complainant. sold a medicine called "Brown's Iron Bitters," which had be,en compounded by one Brown, and the defendants subsequentll began to sell a medicine called "Brown's Iron Tonic," prepared under a di fe1"ent formula by another Brown, who, bona fide, gave it his name, the bottles, wrappers, and labels of the defendants bearing no resemblance to those of the complainant: and the medicine itself being distinguished from that manufactured by complainant, in the circulars issued by defendants, held, that there was no infringement of any symbol, device, or word constituting a trade-mark, nor any evidence of fraud or intent to deceive the public; and that the mere similarity in the sound of the two names furnished no ground for equitable interference.

In Equity. Rowland Cox and Benjamin F. Rex, for complainant. Boyle, Adams &- lJfcKeigham, for defendants. THAYER, J. This case has been elaborately argued. Under the pleadings and proofs, I regard it as, in substance, a proceeding to restrain unfair competition in trade. It is not a case of infringement of a trade-mark, because the testimony does not show that defendant has appropriated any symbol, dEWice, or word, first adopted by complainant, which can be regarded as constituting a trade-mark. Since the year 1879 it appears that complainant has been manufacturing a remedy known and labeled as "Brown's Iron Bitters," at Baltimore, Maryland. Defendants, who are wholesale druggists at St. Louis, Missouri, for some time past have purchased of Lincoln & Co., of Little Rock, Arkansas, and have been selling in the usual course of business, an article known as "Brown's Iron Tonic." Brown's Iron Bitters was originally compounded by a man by the name of Brown, of Baltimore, Maryland, from whom the complainant corporation takes its name and its title to the recipe for the bitters. A man by the name of E. L. Brown, re-