there is no suggestion of a sinister purpose on the part of Rectanus or the Reetanus Company; hence the passage quoted correctly defines the status of the parties prior to the time when they came into competition in the Kentucky market. And it results, as a necessary inference from what we have said, that petitioner, being the newcomer in that market, must enter it subject to whatever rights had previously been acquired there in good faith by the Rectanus Company and its predecessor. To hold otherwise to require Rectanus to retire from the field upon the entry of Mrs. Regis's successor-would be to establish the right of the latter as a right in gross, and to extend it to territory wholly remote from the furthest reach of the trade to which it was annexed, with the 14 Sup. Ct. Rep. 151. But the reason is that purchasers have come to understand the mark as indicating the origin of the wares, so that its use by a second producer amounts to an attempt to sell his goods as those of his competitor. The reason for the rule does not extend to a case where the same trademark happens to be employed simultaneously by two manufacturers in different markets separate and remote from each other, so that the mark means one thing in one market, an entirely different thing in another. It would be a perversion of the rule of priority to give it such an application in our broadly extended country that an innocent party who had in good faith employed a trademark in one state, and by the use of it had built up a trade there, being the first appropriator in that jurisdiction, might afterwards be pre-effect not merely of depriving Rectanus vented from using it, with consequent injury to his trade and good will, at the instance of one who theretofore had employed the same mark, but only in other and remote jurisdictions, upon the ground that its first employment happened to antedate that of the first-mentioned trader. In several cases Federal courts have held that a prior use of a trademark in a foreign country did not entitle its owner to claim exclusive trademark rights in the United States as against one who, in good faith, had adopted a like trademark here prior to the entry of the foreigner into this market. Richter v. Anchor Remedy Co. 52 Fed. 455, 458; [101] Richter v. Reynolds, 8 C. C. A. 220, 17 U. S. App. 427, 59 Fed. 577, 579; Walter Baker & Co. v. Delapenha, 160 Fed. 746, 748; Gorham Mfg. Co. v. Weintraub, 196 Fed. 957, 961. of the benefit of the good will resulting from his long-continued use of the mark in Louisville and vicinity, and his substantial expenditures in building up his trade, but of enabling petitioner to reap substantial benefit from the publicity that Rectanus [102] had thus given to the mark in that locality, and of confusing if not misleading the public as to the origin of goods thereafter sold in Louisville under the Rex mark; for, in that market, until petitioner entered it, "Rex" meant the Rectanus product, not that of Regis. In support of its contention petitioner cites the same cases that were relied upon by the district court; namely, McLean v. Fleming, 96 U. S. 245, 24 L. ed. 828; Menendez v. Holt, 128 U. S. 514, 32 L. ed. 526, 9 Sup. Ct. Rep. 143; Saxlehner v. Eisner & M. Co. 179 U. S. 19, 39, 45 L. ed. 60, 76, 21 Sup. Ct. Rep. 7: and Saxlehner v. Siegel-Cooper Co. 179 U. S. 42, 45 L. ed. 77, 21 Sup. Ct. Rep. 16. They exemplify the rule that, where the proof of infringement is clear, a court of equity will not ordinarily refuse an injunction for the future protection of the proprietor of a trademark right, even where his acquiescence and laches have been such as to disentitle him to an accounting for the past profits of the infringer. The rule finds appropriate application in cases of conscious infringement or fraudulent imitation, as is apparent from a reading of the opinions in those cases; but it has no pertinency to such a state of facts as we are now dealing with. In McLean v. Fleming, the only question raised in this court that affected the right of the appellee to an injunction was whether the circuit In this case, as already remarked, court had erred in finding that defend The same point was involved in Hanover Star Mill. Co. v. Metcalf, 240 U. S. 403, 415, 60 L. ed. 713, 719, 36 Sup. Ct. Rep. 357, where we said: "In the ordinary case of parties competing under the same mark in the same market, it is correct to say that prior appropriation | settles the question. But where two parties independently are employing the same mark upon goods of the same class, but in separate markets wholly remote the one from the other, the question of prior appropriation is legally insignificant, unless at least it appear that the second adopter has selected the mark with some design inimical to the interests of the first user, such as to take the benefit of the reputation of his goods, to forestall the extension of his trade, or the like." come to be recognized there as the "trade signature" of Rectanus and of respondent as his successor, petitioner is estopped to set up their continued use of the mark in that territory as an infringement of the Regis trademark. Whatever confusion may have [104] arisen from conflicting use of the mark is attributable to petitioner's entry into the field with notice of the situation; and petitioner cannot complain of this. As already stated, respondent is not complaining of it. Decree affirmed. ant's labels, "Dr. McLean's Universal CHARLES F. RUDDY, Plff. in Err,, V. HERMAN J. ROSSI. (See S. C. Reporter's ed. 104–111.) homestead lands debts incurred after final proof, but before patent. 1. The exemption of homestead lands, under U. S. Rev. Stat. § 2296, Comp. Stat. faction of any debt contracted prior to the 1916, § 4551, from liability to the satis curred by a homesteader after obtaining the flour branded "La Favorita, S. O. Rider." There was, however, no question but that defendants adopted the brand know-issuing of the patent, extends to debts ining it to be already in use by others. In the Saxlehner Cases, the facts were peculiar, and need not be rehearsed; injunctions were allowed to restrain the sale of certain waters in bottles and under labels in which those of complainant were intentionally imitated. In all four cases the distinguishing features of the present case were absent. validity homestead lands debts incurred after final proof, but before patent. 2. Congress could, as it did by U. S. Rev. Stat. § 2296, Comp. Stat. 1916, § 4551, prevent the sale of lands on execution to satisfy a judgment obtained after final patthat time, but after the receiver's final reent had issued upon debts incurred prior to ceipt and certificate had been obtained. [For other cases, see Execution, II. a, în Di gest Sup. Ct. 1908.] [No. 17.] cember 9, 1918. IN ERROR to the Supreme Court of Here the essential facts are so closely parallel to those that furnished the basis of decision in the Allen & Wheeler Case, reported sub nom. Hanover Star Mill. Co. v. Metcalf, 240 U. S. 403, 419, 420, 60 L. ed. 713, 720, 721, 36 Sup. Ct. Rep. 357, as to render further discussion unnecessary. Mrs. Regis and her firm, having, during a long period of years, con- Submitted November 13, 1918. Decided Defined their use of the "Rex" mark to a limited territory wholly remote from that in controversy, must be held to have taken the risk that some innocent party might in the meantime hit upon the same mark, apply it to goods of similar character, and expend money and effort in building up a trade under it; and since it appears that Rectanus in good faith, and without notice of any prior use by others, selected and used the "Rex" mark, and by the expenditure of money and effort succeeded in building up a local but valuable trade under it in Louisville and vicinity before petitioner entered that field, so that "Rex" had 'S. 47. the State of Idaho to review a judgment which, modifying a judgment of the District Court of the First Judicial District for Shoshone County, in that state, held that homestead lands could be sold on execution to satisfy a judgment upon debts incurred by a homesteader after obtaining the receiver's Note. As to exemptions under Homestead Acts-see note to Goodwin v. Colorado Mortg. & Invest. Co. 28 L. ed. U. entry. Re Wiswell, 6 Land Dec. 265. Prior to the issuance of patent, the Land Department may reopen a case, to correct an error in the decision thereof, and readjudicate the same, after due notice to the parties. Northern P. R. Co. v. Coffman, 24 Land Dec. 280. Until patent has issued, the Land Department has jurisdiction to inquire and determine whether or not a claimant for lands under the Public Land Laws has complied therewith; and, if entry has been made, to inquire and determine whether or not it was properly allowed, and, if found not to have been so allowed, it is the duty of the Department to vacate and cancel such entry. Reed v. Bowron, 32 Land Dec. 383. A controversy involving a claim to public lands is never finally settled until it receives such adjudication as removes the land involved from the jurisdiction of the Land Department. Re Louisiana, 33 Land Dec. 13. It is within the jurisdiction and power, and is the duty, of the Land Department, to inquire into and determine questions brought to its attenion touching the legality or validity of claims asserted under the Public Land Laws, at any time prior to the issuance of patent. Re Hyde, 33 Land Dec. 639. The action of the local land officers upon questions of law or fact respecting the disposal of the public lands does not conclude their superior officers or the government. Such action is, in all cases, reviewable by the Commissioner of the General Land Office, and by the Secretary of the Interior, as the proper administration of the law or demands of justice may require. Orchard v. Alexander, 157 U. S. 373, 39 L. ed. 738, 15 Sup. Ct. Rep. 635; Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258; Kern Oil Co. v. Clarke, 31 Land Dec. 302; Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 592, 593, 42 L. ed. 591-593, 18 Sup. Ct. Rep. 208. The doctrine of "relation," as applied to government patents for land, is never invoked except where necessary to give effect to the intent of the statute, or to cut off intervening claimants. 24 Am. & Eng. Enc. Law, 128, 275, 277; Demarest v. Wyncoop, 3 Johns. Ch. 146, 8 Am. Dec. 467; Stahl v. Lynn, 86 Wis. 75, 56 N. W. 188; Johnston v. Jones, 1 Black, 221, 17 L. ed. 120; Jackson ex dem. Henderson v. Davenport, 20 Johns. 537; Wood v. Ferguson, 7 Ohio St. 291; Barncord v. Kuhn, 36 Pa. 383; Gibson v. Chouteau, 13 Wall. 92-104, 20 L. ed. 534-538, 39 Mo. 588; Lessieur v. Price, 12 How. 74, 13 L. ed. 899; Lynch v. Bernal, 9 Wall. 315, 19 L. ed. 714; Jackson ex dem. Griswold v. Bard, 4 Johns. 230, 4 Am. Dec. 267; Heath v. Ross, 12 Johns. 140; Lyttleton v. Cross, 3 Barn. & C. 325, 107 Eng. Reprint, 754; Redfield v. Parks, 132 U. S. 249, 33 L. ed. 331, 10 Sup. Ct. Rep. 83; Small v. Westchester F. Ins. Co. 51 Fed. 795; Shay v. McNamara, 54 Cal. 175; Hawkins v. Harlan, 68 Cal. 236, 9 Pac. 108; Reynolds v. Plymouth County, 55 Iowa, 93, 7 N. W. 468; Churchill v. Sowards, 78 Iowa, 474, 43 N. W. 271; Durham v. Hussman, 88 Iowa, 36, 55 N. W. 11; Kromer v. Friday, 10 Wash. 642, 32 L.R.A. 671, 39 Pac. 229; Whitney v. Morrow, 34 Wis. 648. Lands acquired under the Federal Homestead Laws cannot, in any event, be subjected to the satisfaction of any debt contracted prior to the issuing of the patent therefor. Watson v. Voorhees, 14 Kan. 328; Empire Copper Co. v. Henderson, 15 Idaho, 635, 99 Pac. 127; Mackenzie v. Hare, 239 U. S. 299, 60 L. ed. 297, 36 Sup. Ct. Rep. 106, Ann. Cas. 1916E, 645; Doran v. Kennedy, 237 U. S. 362, 59 L. ed. 996, 35 Sup. Ct. Rep. 615; Hussman v. Durham, 165 U. S. 144, 41 L. ed. 664, 17 Sup. Ct. Rep. 253. This precise question has never been before this court, but it has been passed upon by at least five of the lesser United States courts, and all of these decisions are in line with the contention of the plaintiff in error. Seymour v. Sanders, 3 Dill. 437, Fed. Cas. No. 12,690; Brun v. Mann, 12 L.R.A. (N.S.) 154, 80 C. C. A. 513, 151 Fed. 145; Re Cohn, 171 Fed. 570; Re Parmeter, 211 Fed. 757; Grames v. Consolidated Timber Co. 215 Fed. 785: Wallowa Nat. Bank v. Riley, 29 Or. 289, 54 Am. St. Rep. 794, 45 Pac. 766. This statute has been construed by the, public benefits than the small required supreme courts of all of the public-land payment of $1.25 per acre. states of the West, and, with the exception of three, one of which is doubtful, they have unequivocally held that the statute means exactly what it says, and that the date of limitation is the date of the patent. Re Harris, 16 Ariz. 1, 140 Pac. 825, Ann. Cas. 1916A, 1175; Gilkerson-Sloss Co. v. Forbes, 54 Ark. 148, 26 Am. St. Rep. 29, 15 S. W. 191; Barnard v. Boller, 105 Cal. 214, 38 Pac. 728; Klempp v. Northrop, 137 Cal. 414, 70 Pac. 284; Miller v. Little, 47 Cal. 348; Russell v. Lowth, 21 Minn. 167, 18 Am. Rep. 389; Dickerson v. Bridges, 147 Mo. 235, 48 S. W. 825: Brandhoefer v. Bain, 45 Neb. 781, 64 N. W. 213; Smith v. Schultz, 10 Neb, 630, 7 N. W. 329; Leman v. Chiptean, S2 Neb, 392. 117 N. W. 885; Clark v. Bayley, 5 Or. 343; Faull v. Cooke, 19 Or. 455, 20 Am. St. Rep. 836, 26 Pac. 662; Wallowa Nat. Bank v. Riley, 29 Or. 289, 54 Am. St. Rep. 794, 45 Pac. 766; Schultz v. Levy, 33 Or. 373, 54 Pac. 184; Gould v. Tucker, 20 S. D. 226, 105 N. W. 624; Blair v. Mayer, 24 S. D. 563, 140 Am. St. Rep. 797, 124 N. W. 721; Van Doren v. Miller, 14 S. D. 264, 85 N. W. 187; Jean v. Dee, 5 Wash. 580, 32 Pac. 460; Sprinkle v. West, 62 Wash. 587, 34 L.R.A.(N.S.) 404, 114 Pac. 430, Ann. Cas. 1912D, 281; Gile v. Hallock, 33 Wis. 523; Sturby-Eastabrook Mercantile Co. v. Davis, 18 Colo. 93, 36 Am. St. Rep. 266, 31 Pac. 495; Stark Bros. y. Glaser, 19 Okla. 502, 91 Pac. 1040; Leonard v. Ross, 23 Kan. 296. Mr. Carlton Fox also submitted the eanse for plaintiff in error. No appearance for defendant in error. Mr. Justice McReynolds delivered the opinion of the court: Decision of this cause requires us to consider the meaning and validity of $4 of the act [Rev. Stat. § 2296, Comp. Stat. 1916, § 4551], which provides: "No lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor." Plaintiff in error made preliminary homestead entry of designated land within the state of Idaho August 6, 1903; submitted final proois October 4, 1909; obtained [106] final receipt and certificate November 12, 1909; final patent issued August 26, 1912. In 1914 tWO judgments were obtained against him: the first upon indebtedness incurred prior to November 12, 1909; the second upon debts contracted subsequent to that date and prior to patent. Executions were issued and levied upon the homestead; and thereupon the original proceeding was begun to declare asserted liens invalid and a cloud upon the title. The court below held the first judgment unenforceable against the land, since it represented indebtedness which accrued prior to final entry. It further held the second judgment could be so enforced, as it was based upon debts contracted after final entry, at which time the homesteader became legally entitled to his patent. 28 Idaho, 376, 154 Pac. 977. The language of § is clear, and we find no adequate reason for thinking that it fails precisely to express the lawmaker's intention. Did Congress have power to restrict alienation of homestead lands after conveyance by the United States in fee simple? This question undoubtedly presents difficulties which we are not disposed to minimize. In Wright v. Morgan, 191 U. S. 55, 58, 48 L. ed. 89, 93, 24 Sup. Ct. Rep. 6, a similar point was suggested, but not decided. The Constitution declares: "The Con By "An Act to Secure Homesteads to Actual Settlers on the Public Domain," approved May 20, 1862, 12 Stat. at L. 392, chap. 75, Comp. Stat. 1916, § 4530,gress shall have power to dispose of and Congress prescribed the conditions un- make all needful rules and regulations der which citizens could acquire unap-respecting the territory or other properpropriated public lands in tracts of notty belonging to the United States; " and exceeding 160 acres. A manifest pur- it is settled that Congress has plenary pose was to induce settlement upon and power to dispose of public lands. Unitcultivation of these lands by those who, ed States v. Gratiot, 14 Pet. 526, 537, 10 five years after proper entry, would be-L. ed. 573, 578. They may be leased, come owners in fee through issuance of sold, or given away upon such terms and patents. The great end in view was to conditions as the public interests require. convert waste places into permanent Instead of granting fee-simple titles with homes. Such occupancy and use consti- exemption from certain debts, long leases tuted a most important consideration might have been made or conditional and were rightly expected to yield larger 'titles bestowed in such fashion as prae tically to protect homesteads from all indebtedness. [107] "The sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." M'Culloch v. Maryland, 4 Wheat. 316, 421, 4 L. ed. 579, 605. Acting within its discretion, Congress determined that, in order promptly to dispose of public lands and bring about their permanent occupation and development, it was proper to create the designated exemption; and we are unable to say that the conclusion was ill-founded, or that the means were either prohibited or not appropriate to the adequate performance of the high duties which the legislature owed to the public. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice Holmes: This case involves a question of theory that may be important, and I think it desirable to state the considerations that make me doubt. The facts needing to be mentioned are few. On August 26, 1912, the United States conveyed land in Idaho to Ruddy in fee simple, in pursuance of a homestead entry by Ruddy on August 6, 1903, final proof on October 4, 1909, and final receipt of the purchase price on November 12, 1909. In September, 1912, after the conveyance, Rossi began suits against Ruddy, attaching this land, and in June, 1914, levied executions upon the same. The debts for which the [108] suits were brought were incurred before the issue of the patent, and the present proceeding is to prevent Rossi from selling the land to satisfy the judgments. The question arises under Rev. Stat. § 2296, Comp. Stat. 1916, § 4551, providing that no lands acquired under that chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor. The supreme court of Idaho narrowed the issue to the case of debts contracted after final proof, but that distinction is not important to the difficulty in my mind. My question is this: When land has left the ownership and control of the United States and is part of the territory of a state, not different from any other privately owned land within the jurisdiction, and no more subject to legislation on the part of the United States than any other land, on what ground is a previous law of Congress supposed any longer to affect it in a way that a subsequent one could not? This land was levied upon not on the assertion that any lien upon it was acquired before the title passed from the United States, but merely as any other land might be attached for a debt that Rossi had a right to collect, after the United States had left the premises. I ask myself what the United States has to do with that. There is no condition, no reserved right of re-entry, no reversion in the United States, saved either under the Idaho law, as any private grantor might save it, or by virtue of antecedent title. All interest of the United States as owner is at an end. It is a stranger to the title. Even in case of an escheat the land would not go to it, but would go to the state. Therefore the statute must operate, if at all, purely by way of legislation, not as a qualification of the grant. If § 2296 is construed to apply to this case, there is simply the naked assumption of one sovereignty to impose its will after whatever jurisdiction or authority it had has ceased and the land has come fully under the jurisdiction of what for this purpose [109] is a different power. It is a pure attempt to regulate the alienability of land in Idaho by law, without regard to the will of Idaho, which we must assume on this record to authorize the levy if it is not prevented by an act of Congress occupying a paramount place. I believe that this court never has gone farther in the way of sustaining legislation concerning land within a state than to uphold a law forbidding the inclosure of public lands, which little, if at all, exceeded the rights of a private owner, although it was construed to prevent the erection of fences upon the defendants' own property, manifestly for the sole purpose of inclosing land of the United States. Camfield v. United States, 167 U. S. 518, 42 L. ed. 260, 17 Sup. Ct. Rep. 864. At most it was a protection of the present interests of the United States under a title paramount to the state. On the other hand, it is said in Pollard v. Hagan, 3 How. 212, 224, 11 L. ed. 565, |