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by implication, it is not sufficient to show merely that a later statute, making no mention of the particular subject of the first, employs language broad enough to cover some part or all of it; for, as words are sometimes employed with less than their largest literal meaning, it must also appear that the two statutes cannot stand together, reasonable purpose and operation being accorded to each. Particularly is this true if the first expresses a settled policy in legislation. Wood v. United States, 16 Pet. 342, 362, 10 L. Ed. 987; United States v. Gear, 3 How. 120, 131, 11 L. Ed. 523, 538; Frost v. Wenie, 157 U. S. 46, $58, 15 Sup. Ct. 532, 39 L. Ed. 614; United States v. Healey, 160 U. S. 136, 146, 16 Sup. Ct. 247, 40 L. Ed. 369; Rosecrans v. United States, 165 U. S. 257, 17 Sup. Ct. 302, 41 L. Ed. 708; United States v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130; McChord v. Louisville & Nashville R. R. Co., 183 U. S. 483, 500, 22 Sup. Ct. 165, 46 L. Ed. 289. Or, as the same thing is at times differently expressed, a statute couched in clear and explicit terms is not overthrown by possible, but not necessary, implications flowing from after legislation. We shall refer briefly to two of the cases just cited, each dealing with a conflict literally more pronounced than that now before us.

United States v. Gear arose under the public land laws. The policy of Congress to reserve from disposition under other laws public lands. containing lead mines had long been expressed in Act March 3, 1807, c. 49, § 5, 2 Stat. 449, when Act June 26, 1834, c. 76, § 4, 44 Stat. 687, establishing new land districts, directed the President to cause to be offered for sale "all the lands lying in said land districts." Thus there was presented the question whether or not the later act superseded the other, there being lands of both classes in those districts; and of this the court said:

"The rule is that a perpetual statute (which all statutes are unless limited to a particular time), until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms upon the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be the law in force as to the particulars of the subject-matter legislated upon. Thus, in this case, all lands within the district mean lands in which there are, and in which there are not, minerals or lead mines; but a power to sell all lands, given in a law subsequent to another law expressly reserving lead-mine lands from sale, cannot be said to be a power to sell the reserved lands when they are not named, or to repeal the reservation. In this case there are two acts before us, in no way connected, except in both being parts of the public land system. Both can be acted upon without any interference of the provisions of the last with those of the first; each performing its distinct functions within the sphere as Congress designed they should do."

United States v. Greathouse arose under the laws relating to the prosecution of claims against the United States. Section 1069 of the Revised Statutes [U. S. Comp. St. 1901, p. 740] provided that such claims should be barred unless the petition was filed within six years after the claim first accrued, but contained an excepting clause in favor of married women and others, including persons beyond the seas, who were permitted to sue within three years after the disability ceased. In 1887 Congress passed an act (Act March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. S. 1901, p. 753]) relating to the prosecution of such

claims, which, in a proviso to its first section, declared that "no suit against the government of the United States shall be allowed under this act unless the same shall be brought within six years after the right accrued for which the claim is made," but contained no excepting clause in favor of married women or others. That act also declared all acts and parts of acts in conflict with it repealed. Greathouse was beyond the seas from 1886 to 1889, when his claim accrued, and until 1894, when his suit was commenced. In answer to the government's contention that the excepting clause in section 1069 was displaced by the later act the court held:

"The act of 1887 only superseded such previous legislation as was inconsistent with its provisions. It is true that, if that act be literally construed. there is some ground for holding that Congress intended by the proviso of section 1 to cover the whole subject of the limitation of suits against the government, in whatever court instituted. But we cannot suppose that it was intended to strike down the exceptions made in section 1069 of the Revised Statutes in favor of 'the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued.' Those exceptions were not expressly abrogated by the act of 1887, and they could be held to be repaled only by implication. But repeals by implication are not favored, and when two statutes cover in whole or in part the same matter, and are not absolutely irreconcilable, effect should be given, if possible, to both of them. Frost v. Wenie, 157 U. S. 46, 58, 15 Sup. Ct. 532, 39 L. Ed. 614; United States v. Healey, 160 U. S. 136, 147, 16 Sup. Ct. 247, 40 L. Ed. 369. In conformity with this principle we must adjudge that the above proviso of section 1069 of the Revised Statutes is still in force, because not absolutely inconsistent with the last proviso of the act of 1887; consequently, that the claim of a person who was beyond the seas at the time the claim accrued is not barred until three years shall have expired after such disability is removed without suit against the government. Although the act of 1887 prescribes the limitation for suits 'under this [that] act,' without making any exception in favor of persons under disability, it should be interpreted as if the proviso in section 1069 of the Revised Statutes were added to section 1 of that act. We could not hold otherwise without deciding, in effect, that the limitation of six years applied to claims accruing to married women and infants during their respective disabilities, as well as to the claims of idiots, lunatics, and insane persons. We are unwilling to hold that Congress intended any such result."

Can reasonable purpose and operation be accorded to the special saving clause without impinging upon the purpose and operation of the general statute? If so, it is quite plain that the broad language of the former does not necessarily relate to the particular subject of the latter, and, therefore does not by necessary implication manifest an intention to supersede or repeal it. When we consider that the special saving clause was part of the Hepburn bill from the time of its introduction in the House of Representatives, and that the provision amending section 1 of the Elkins act did not become part of the bill until after it had passed the House of Representatives and was pending in the Senate, it is difficult to believe that the former has particular reference to the effect of the partial repeal wrought by the latter. And, when we consider that any ground which could have been reasonably advanced for enforcing the repealed law against offenders who were then indicted would have been equally applicable to others who, within the period prescribed by the statute of limitations, had offended in like manner, but were as yet unindicted, and also the marked contrast between the

explicit and appropriate terms of the general statute, which was presumptively in the mind of Congress, and the altogether different terms of the special saving clause, it is difficult to believe that the latter has. any reference to the particular subject of the former, namely, the effect of a repealing act upon the enforcement of penalties, forfeitures, and liabilities incurred under the law repealed.

We turn, therefore, to the other provisions of the Hepburn act, in the light of which the special saving clause must be read, to ascertain whether or not they indicate that it has another purpose and field of operation, more consonant with reason and with its different language. That act fills 12 pages of the Statutes at Large and comprises 11 sections. Its purpose is that of perfecting the existing law regulatory of interstate commerce, and this is done by eliminating or changing old provisions deemed unsatisfactory, and by adding supplementary or auxiliary provisions intended to give greater strength and efficiency to the law. These changes all fall within the general category of amendments, but they differ widely in subject and operation. Some operate to repeal portions of the prior law imposing penalties, forfeitures, or liabilities, and therefore come within the explicit terms of the general saving clause (Rev. St. § 13). Others have more immediate relation to proceedings in the courts of the United States; and still others have immediate relation to proceedings before the Interstate Commerce Commission. Within the first class is the partial repeal of section 1 of the Elkins act, resulting from the insertion of the word "knowingly"; within the second are several of the changes in section 16 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 384 [U. S. Comp. St. 1901, p. 3165]), notably those relating to the procedure in the Circuit Courts upon petitions for the enforcement of orders of the Interstate Commerce Commission and that removing the pecuniary limitation upon the right of appeal to the Supreme Court in such cases; and within the third are the change in section 14, some of the changes in section 15, and the change in the opening paragraph of section 16. If proper regard be had to the subject and operation of these varied changes, and also to the settled operation of the general saving clause, with which Congress was presumptively familiar, it is reasonably plain, as we think, that the special saving clause, although speaking of the amendments collectively, is directed against such of them only as, in its absence, would affect causes then pending in the courts of the United States, and is intended merely to secure the continued prosecution, in the manner theretofore provided, of such pending causes as otherwise would be affected. In the presence of the general saving clause, pending causes for the enforcement of penalties, forfeitures, or liabilities would not be affected by the repeal of portions of the prior law imposing them; nor would pending causes in the courts be affected by the changes having immediate relation to proceedings before the Interstate Commerce Commission. Thus far, therefore, there was no occasion for a special saving clause in favor of causes then pending in the courts of the United States. But the changes having immediate relation to proceedings in those courts altered the situation; for they, if not restrained, would affect both pending and future causes. 2 Sutherland, St. Con. (2d Ed.) § 674; Railway Company v. Grant, 98 U. S.

398, 25 L. Ed. 231; Campbell v. Iron Mountain Silver Mining Co, 83 Fed. 643, 27 C. C. A. 646. Here, then, was occasion for a special saving clause, and the language of section 10 appears to have been well chosen to meet it. True, in the absence of the general saving clause, that language would be broad enough to also cover part of the ground covered by it—that is, to save such penalties, forfeitures, and liabilities as would be enforced by the continued prosecution of pending causes; but that is not a controlling guide to its meaning, in the presence of the general saving clause, for not only is the true intendment of language often dependent upon the circumstances in which it is used, but the state of the law when a statute is enacted is always an important factor in its interpretation. As before indicated, the special saving clause does not contain any term or expression which bears directly upon the effect of the repealing portions of the act upon existing penalties, forfeitures, and liabilities; nor does it contain anything which was not reasonably appropriate to the occasion, if Congress, mindful of the existence of the general saving clause and satisfied to leave it in undisturbed operation, was solicitous merely that the amendments bearing directly upon the jurisdiction and procedure of the courts of the United States should not affect causes then pending therein. In these circumstances we are persuaded that the special saving clause can be accorded reasonable purpose and operation by treating it as intended only to save such causes from what, in its absence and in the presence of the general saving clause, would be the effect of the amendments upon them; and we accordingly hold that, rightly interpreted, it does not cover any part of the particular subject of the general saving clause, and, therefore, does not by necessary implication manifest an intention to release or extinguish penalties, forfeitures, and liabilities for the enforcement of which no cause was then pending.

It follows that there was no error in the rulings of the District Court, and its judgment is affirmed.

(155 Fed. 964.)

MEMPHIS KEELEY INSTITUTE et al. v. LESLIE E. KEELEY CO. (Circuit Court of Appeals, Sixth Circuit. July 20, 1907.)

No. 1,619.

1. TRADE-MARKS AND TRADE-NAMES-UNFAIR COMPETITION-RIGHT TO PROTECTION-MISREPRESENTATION BY PLAINTIFF EVIDENCE.

Evidence considered, and held to establish the contention that the complainant, which was the manufacturer and proprietor of a secret remedy which it sold and used for the treatment and cure of the opium, liquor, and tobacco habits, and which it claimed and represented to the public as having as its chief and most valuable ingredient chloride of gold or "double chloride of gold," was chargeable with fraudulent misrepresentations, in that such remedy did not contain any gold or chloride of gold.

[Ed. Note. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]

2. SAME-EFFECT-FRAUDULENT REPRESENTATIONS.

The proprietor of a medicine or remedy made in accordance with a secret formula, which knowingly makes false and fraudulent representations as to the ingredients of such remedy to the public through its advertisements and labels, cannot maintain a suit in equity to protect its

business of selling or administering such remedy from invasion and injury by another.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 94.]

3. SAME-PLEADING.

That a complainant comes into a court of equity with unclean hands, in that he is chargeable with fraudulent misrepresentations to the public in respect to the subject-matter of the suit, is not, strictly speaking, a defense, and need not be pleaded, but, upon such fact appearing, it will be given effect by the court in the interest of the public by refusing to grant relief to the complainant.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 103.]

Appeal from the Circuit Court of the United States for the Western District of Tennessee.

For former opinion, see 144 Fed. 628, 75 C. C. A. 430.

C. W. Metcalf, for appellants.

T. E. Barry, for appellee.

Before SEVERENS and RICHARDS. Circuit Judges, and COCHRAN, District Judge.

COCHRAN, District Judge. This is the second appeal of this case. The first appeal was dismissed, and the opinion then delivered is reported in 75 C. C. A. 430, 144 Fed. 628. A reading thereof will disclose the ground of the dismissal and the nature of the controversy involved in the case. In brief, the first appeal was dismissed because the decree appealed from was not final. It was a partial dismissal of the bill. It did not dismiss the bill entirely, but only one branch of the controversy raised by it, and that a subordinate one. On the return of the cause to the lower court, it disposed of the whole controversy by a final decree. It receded from the position taken on the former hearing that the contracts between the appellee and the appellant Memphis Keeley Institute had been abandoned and rescinded before suit brought, because of which said partial dismissal of the bill, to wit, in so far as it sought a cancellation of said contracts, was made, and granted appellee the full relief which it sought. It enjoined the appellants from claiming that they had a right to, and were, in fact, administering Keeley remedies at the Memphis Keeley Institute, and adjudged a cancellation of said contracts and delivery up to appellee of the Keeley remedies in possession of the appellants on their being reimbursed the price paid for same. It is from this decree that this appeal is taken.

The main ground upon which appellants claim that the decree of the lower court should be reversed is that the appellee did not come into that court with clean hands, and therefore was not entitled to the relief it sought and that was granted to it. The position that it did not so come into court is undertaken to be maintained in this way. The business in which the appellee is engaged, to wit, administering, and selling to be administered, what are known as "Keeley remedies' for the opium, liquor, and tobacco habits and neurasthenia, and which was sought to be, and by the decree is, protected from injury and invasion by appellants, has been built up and is being maintained by

84 C.C.A.-8

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