795

In '1"'6 An. Toy.

1. HABEAS CORPus-RETURN-SUFJ!'ICIRNOY-CITY ORDINANClliB." " ' A return to the writ of hapeaa by the chief of police of ,a city, stating that petitioner is heW. b;r virtue of a warrant of the police liourt wAerein petitioner had bOOn cl)nvicted of VIsiting a house ,of.ill fame, and sentenced to imprisonment, is not for,failure to state the' l)rdi1l,ance under which he was convicted, when . , such: ordiuanCl8,JNas set out iidb,e vetition. ' la.MUNIOlPAL ,ORDINANOllS-V ALIDITT-DI$OBl)ERLYBoUSlliS-r.....UNI!BIEB. The fact thataseetion of a cityordin!lllcerelatjng:to laundries has beeD, adjudged void does not afteet the validity of. of the same orqinan06 whioh prohibits tne keeping of hou8611 of .ill and the frequenting thereof.

Habeas CorpU8. Alfred (ffn,rke, for petitioner.
HAWLEY, J. The return to the-writ stares that petitioner is held in custody by the chief of police of the city and county of San Francisco under and by virtue of a commitment regularly issued from the police court of said city and county,statirig.that petitioner had been.duly convicted of a misdemeanor in visiting a house of ill fame, and sentenced to pay a fine, with thealternative,of imprisonment. The return does not state under what particular ordinance petitioner was convicted, and petitioner therefore claims that the facts stated in the return are not sufficient to justify his imprisonment. .The petition for the writ alleges that petitioner is in custody for a supposed violation of section 33 of order 1587 of the board of supervisors,and claims that he is entitled to his discharge upon the ground that said order is null and void. Upon the hearing before the commissioner; to whom this matter was referred, it was shown by petitioner that he was convicted of a violation of order 1955, "amendatory of section 33 of order 1587, prohibiting disorderly houses, houses of ill fame, and places for the' practice of gambling." This amendatory order expressly provides that it shall be unlawful for any person to "become an inmate of, or a visitor to, * * * any * * * house oiill fame." It thereforeaffinnatively appears that the defects complained of in the return 'were supplied by the' allegations of the petition and proofs offered by petitioner. The demurrer to the return is overrUled. The contention of petitioner's counsel, that order 1587 had been declared null and void· by the supreme court of the United States in the cases Qf Ywk Wo v. Hopkim, and Woo Lee v. Hopkim, 118 U. S. 856, 6 Sup. Ct. Rep. 1064, is utterly devoid of merit. The fact that section 68 of order 1587, relating exclusively to maintaining. and carrying on laundries, has been declared invalid, in no respect impairs the validity. force, or e·ffect of other sections of the order,relating to entirely separate, independent, and distinct subjects. The legal principles announced b) the supreme court in the Lawndry Ca888 have no application toa case like this. In I('e Ah Kit, ante, 793:, (recently decided;) In re Ohri8ten8en, 11 Sup.Ct. Rep. 13. The petitioner is remanded.

796

J'EDERAL'REPORTER,

vol. 45.

BATTLE

(0IrcwU

& CO.

FINLAY

et al.

Oowrt,E. D. Louiriana. April S, 1891.)

TJuD:e.-X.RK-INJ!'RINGEMlilNT-EvroENOl!i·

.In a suit for infringing a trade.'mark, it appeared that for many years plaintiff had manufactured and sold a chemical preparation for inedicinal purposes under the Dame of "Bromidia," a word coined for and arbitrarily applied to the preparation, and that in 18811t had registered that word as a trade-mark in the patent office; that defendants sUbsequently manufactured and 'sold a similar compound, intended for the same uses, which they labeled, "Compound Elixir Chloral & Bromide of Potassium, " underneath which in large letters, the most prominent and conspicuous word oD'the label is the word " Bromidia, "while below, in smaller type, though distinct and of good size, is a ststeinent that· it is prepared by defendants. B el.d an infringement of the trade-mark, by which incautious purchasers are likely to be deceived, and that an injunction pendente Ute must be granted.

In Equity.

Motion for preliminary injunction.

" R. S..McDonald, for

B. R. FOrman. for defendants;

PARDEE, J. On this preliminary bearing the case plainants and their assignors, from about 1877, adopted forthei.r use as a trade-mark, (for a chemical or medicinal preparation mantlfactured by them under an alleged private formula, composed of chloral hydrate, mide of potassium, extractofcannabis indica; andex.tract of hyoscyamus,) the word "Bromidia," a word coined for and arbitrarily applied to the preparation aforesaid; that thereafter they manufa.ctured thiil said preparation, put it in the market with the said label , "Bromidia," and built up and established a business in themanufactureQf saidp:t:e}jaratioll, P:tIt., ting it for sale on the market in packages marked with and by the said trade-mark, so that the same became known thro1;lghoQt the trade' and to the publip,. and became and is valuable to the. cpmpla·inants; and that in 1881, under the law, of the United States entitled ",All act to authorize the registration of tradermarks,and to; protect the trade-mark was duly registered in' the that the defendant& are engaged in the manufacture ofa chemical'.or medicinal preparation of the same componen.t:parts as the complainants' the same,and used for tbesame.purposes, which theyJabel "Compound Elixir Chloral & Bromide of PotassIum," underneath. which, in larger letters, and as themostpromincmt and conspicUoUS mark on the label, appears the word'" Broroidia," and at the bottom oLthe label, in letters decidedly smaller, though of g.Qod size and distinct; the words, "Prepared by Finlay & Brunswig, Manufacturing Chemists, New Orleans;" and that the defendantsintheir·tl'tLde, when called upqn for "Bromidia," either by written or verbal order,supply the article of their own preparationlabeled as above. The defendants, in their al1swel', admitting the manufacture of the preparationafore.said since January 1,1888, assert that the word "Bromidia," used by them,' indicates that the. chief com· ponent part of is brqmic:Je,and does not in any way dicate the origin of the preparation, nor the persons. by whOm it