WISCONSIN. 



831 



7. Opposes further grants of public lands in aid 

 of corporations, against sectarian control in public 

 schools, and favoring economy in public expendi- 

 tures. 



The following members of Congress were 

 elected : Charles G. Williams, Rep. ; Lucien H. 

 Caswell, Hep. ; George 0. Hazelton, Rep. ; Pe- 

 ter V. Deuster, Dem. ; Edward S. Bragg, Dem. ; 

 Gabriel Bouk, Dem. ; Herman L. Humphrey, 

 Rep. ; and Thaddeus C. Pound, Rep. The Legis- 

 lature of 1879 is made up as follows : Senate, 

 24 Republicans, 9 Democrats; Assembly, 66 

 Republicans, 24 Democrats, 6 Greenbackers, 

 3 Greenback Democrats, and 1 Independent. 



In January, 1879, after a protracted con- 

 test, Matthew H. Carpenter was chosen United 

 States Senator. 



In November a very important decision was 

 delivered by Judge Dyer, holding United States 

 Circuit Court for the Eastern District of Wis- 

 consin. It declares unconstitutional the act of 

 Congress providing protection for trade-marks ; 

 and it was concurred in by Mr. Justice Harlan, 

 of the United States Supreme Court, who sat 

 with Judge Dyer. The statute in question, 

 the first one of the kind in this country, was 

 passed in 1870. It provides for the registra- 

 tion of trade-marks at Washington on payment 

 of a fee of $25, and gives remedies in law and 

 equity against "any person who shall repro- 

 duce, counterfeit, copy, or imitate any record- 

 ed trade-mark and affix the same to goods of 

 substantially the same descriptive properties 

 and qualities as those referred to in the regis- 



trations." Judge Dyer based his decision on 

 the ground that Congress has no power to puss 

 a trade-mark law unless it is derived from the 

 clause of the Constitution which authorizes 

 that body "to promote the progress of science 

 and useful arts by securing for limited terms 

 to authors and inventors the exclusive right to 

 their respective writings and discoveries." Un- 

 der this provision the several patent and copy- 

 right laws have been passed. But lie holds 

 that " the maker of a trade-mark is neither an 

 author nor an inventor, and a trade-mark is 

 neither a writing nor a discovery within the 

 meaning and intent of the constitutional clause 

 in question." Congress, therefore, was not au- 

 thorized to legislate for the protection of trade- 

 marks, and consequently the law for that pur- 

 pose is void. The soundness of this decision 

 has been questioned by lawyers. It is claimed 

 that Congress is empowered to legislate on this 

 subject by that provision of the Constitution 

 which relates to commerce. This appears to 

 have been but little discussed in the case before 

 Judge Dyer, and was very briefly considered by 

 him. "It may be added," he said, "that the 

 constitutionality of the trade-mark statute can 

 not be sustained under the clause which gives 

 to Congress the power to regulate commerce 

 among the several States, nor, in my opinion, 

 under any of the provisions of the Constitution 

 which prescribe the legislative powers of Con- 

 gress." The law on this point can not be re- 

 garded as finally settled until it shall be declared 

 by the Supreme Court of the United States. 



