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The Green Bag

not permitted to vote is republican in A PATENTEE'S MONOPOLY OF form. SALE The recent decision of the Supreme Court in the Oregon Initiative and Refer THE Supreme Court of the United endum case (Pacific States Telephone & States, in its decision in Sidney Telegraph Co. v. Oregon, Oct. term et al.v. A. B. Dick Co., follows the Eng 1911, no. 36) reasserts the non-inter lish common law doctrine of the rights ference doctrine of Luther v. Borden. It of patentees. Federal Judge Putnam, is not a doctrine, on the whole, which in a recent decision on the validity of reveals grave hidden weakness in our indictments against the United Shoe constitutional system. If the federal Machinery Company, referred to a case courts may not interfere with the action where the Judicial Committee of the of the states in adopting whatever forms Privy Council had upheld a contract of government they may choose, rang which required the users of a patented ing from monarchical absolutism to the shoe machine to use fastenings and tyranny of mob-rule, Congress may other devices not covered by the patent. interfere to maintain the older govern More recently the Judicial Committee ment, if necessary, in the face of internal sustained covenants restrictive of com discord and disorder, and no additional petition in a case coming before it on safeguard would appear to be needed. appeal from the Supreme Court of The principle of "home rule" has made Australia. (National Phonograph Co., such progress in the field of local govern Ltd., v. Menck, 1911, A. C, p. 336, see ment that there is much to be said in 23 Green Bag, 596.) favor of giving it the broadest possible It would not have been wholly im scope, in that of state government as possible, perhaps, for our Supreme well. Court to decide the Dick case in the As for the narrow question whether the opposite way, extending the principle initiative and referendum are consistent involved in Dr. Miles Medical Co. v. with a republican form of government, John D. Park & Sons Co., 220 U. S. 373 there is a strong sentiment in influential (23 Green Bag 322), which was a case of quarters that if they are treated as monopoly of sale of unpatented medi simply emergency measures, to be em cines. The position of Mr. Justice ployed on extraordinary occasions, they Hughes, who wrote the ruling opinion do not supplant, but on the other hand in the Dr. Miles case, and of Mr. Justice may even tend to reinforce, our existing Holmes, who dissented, has not really representative institutions. We are dis changed, though the former now dis posed to agree with a writer in the sents from and the latter concurs in the Harvard Law Review who, after a careful judgment in the Dick case. The dic study of authorities, concluded: "It tum of Mr. Justice Holmes in the Dr. seems, on the whole, that 'republican' Miles case would perhaps be appropri in the Constitution is ambiguous, and ate to his attitude in this later decision: that a positive interpretation that it "I think that at least it is safe to say had a meaning so narrow as to exclude that the most enlightened judicial policy direct legislation cannot be supported."1 is to let people manage their own busi ness in their own way, unless the ground for interference is very clear." The difference between patents and 'See 23 Green Bag, 80.