Page:The Green Bag (1889–1914), Volume 18.pdf/669

 630

THE GREEN BAG

employees not to admit him, and that he had been forcibly prevented from entering such theaters after purchasing a ticket. The court refers to the case of Collister v, Hayman, 183 N. Y. 230, 76 N. E. 20, i L. R. A. (N. S.) 1188, decided by the court of appeals, where it was held that the conducting of a theater is a private business which the proprietor can open or close at will, admitting as many as he sees fit, and charging what he may choose, and that the manager and proprietor of a theater has the right to say who shall enter his theater. After citing Collister v. Hayman, 183 N. Y. 250, 76 N. E. 20, i L. R. A. (M. S.) 1188, where the court of appeals held the conducting of a theater to be a private business, the court finds that the manager and proprietor of a theater has the right to say who shall enter his place of entertainment and who shall not, or what class of people shall be entitled to do so and what class shall not. This necessarily fol lows from the fact that his enterprise is a private one, and because while he may entertain the public at large, he is under no obligation to do so. His rights and duties are not like those of car riers, who have public franchises. And it is de cided that defendants under such principle did not enter into an unlawful agreement, that if they disliked the presence of the critic, or thought his attendance was injurious to their business, they had a lawful right to agree to exclude him, and that if he attempted to enter their places of amusement, they had the right to prevent him from so doing by any reasonable force, so long as the agreement entered into was not actuated by the sole motive of preventing the critic from exer cising his lawful calling. National Protective Association v. Gumming, 170 N. Y. 315, 63 N. E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648, is cited to sustain the proposition that persons may com bine to do any lawful act without subjecting them to responsibility, either civil or criminal. "Sole motive " is altogether too strong an ex pression. If the dominant motive was to injure the critic in his business the purpose of the Statute was violated. Rideout v. Knox, 148 Mass. 368, 19 N. E. 390. Moreover, there is no justification in reason for the statement that what one may law fully do any member may lawfully combine to do; that doctrine is the gospel of the boycott and has made New York state its congenial home. CONSTITUTIONAL LAW. (Validity of State Statute — Discrimination Against Patented Ar ticles.) (U. S. Cir. C. App.) — Ozan Lumber Com pany v. Union County National Bank of Liberty, Ind., 145 Federal Reporter, 344, is a case in which the court was called to pass upon the validity of

a statute of Arkansas. Act April 23, 1891 (Sand & H. Dig., §§ 493-496) which provides that every negotiable instrument taken in payment for any patented machine, implement, substance, or in strument shall be executed on a printed form, showing on its face that it was so taken, and making its violation punishable by a fine, and all such negotiable instruments not so showing on their face, absolutely void. The legislation was upheld by the state court, but the federal court holds that the statute is unconstitutional and void, for the reason that it creates a dis crimination between articles of property of the same class or character, which discrimination is based on the fact alone that those discriminated against are protected by a patent granted by the United States. Support for the statute was claimed to he found in Patterson t;. Kentucky, 97 U. S. 501, 24 L. Ed. 1115, and in Webber v. Virginia, 103 U. S. 344, 26 L. Ed. 565. In the first case a statute of Kentucky required the inspection and gauging of illuminating oils and fluids, recognized as standard those that ignited and permanently burned at a specified tempera ture, and condemned those more inflammable as unsafe, and it was sought to exempt from the statute a patented oil which could not be made to conform with the test, on the ground that the oil was protected by patent, and it was held that there was no such exemption. In the latter case, an agent of a manufacturing company sought to escape the operation of the license laws of Vir ginia, on the ground that the articles sold by him were patented, and in that case it was held that the rights conferred by the patent laws did not exempt the patented articles from the operation of the local law. The court distinguishes these cases from the one at the bar by stating that their doctrine is well defined and is " that the tangible products of an invention become a part of the mass of property of the state and fall within the domain of its police power, and that immunity from the lawful exercise of that power cannot be claimed solely because of the incident of the patent; but it is an entirely different thing to say that merely because articles are patented, they may, for that reason, be selected from the mass of other property of like character for invidious and hostile discrimination." The court points out that if the state could lawfully enact such a statute as that in question, it might with equal reason destroy the negotiability of all notes taken by national banks, by other corporations organ ized under the laws, by citizens of other states, and in interstate commerical transactions, which obviously is not within the power of the state. The court cites a number of cases upholding local