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Cassels, J.] [october 11th, 1913.
IN THE MATTER OP THE APPEAL OF WILLIAM LEONARD FROM A DECISION OF THE COMMISSIONER OF PATENTS REFUSING AN APPLICATION FOR A PATENT OF INVENTION.
Patent of Invention — Feeds far Grain, Ore and Mineral Separators — Appeal from Decision of Commissioner under 3-4 Geo. V. ch. 17—Grounds for Refusal to grant Patent.
More than two years before the application for the patent in question on the appeal, the applicant had obtained Canadian letters-patent No. 110156 for feeds for grain, ore and mineral separators. The specification of the former patent after declaring the old method of separating materials such as gold and ore, cereals and seeds, by delivering them into a vertical spout from a connecting inclined spout and forcing a current of air upward through the vertical spout was ineffective, disclosed the nature of his invention a* follows:
"I have found that by delivering the materials in a horizontal plane or directly across the vertical spout and therefore at right angles to the ascending air current, they are spread out in a thinner sheet so that the air current acts thereon more effectively, or in other words forces upward and separates the lighter materials from the heavier in a more perfect manner than is practicable when the materials are discharged in a downward direction."
The substance of the invention claimed in the former patent was the delivering of the materials in a horizontal plane, or directly across the vertical spout, and therefore at right angles to the ascending current of air.
Held, (affirming the decision of the Commissioner) that by the specification to his former patent the applicant had disclosed the invention now claimed, and the fame must be taken to have been abandoned and dedicated to the public.
(2) A former patent, while in force, operates as a bar to the application for a new patent, and the only remedy open to the applicant, if he is in a position to invoke it, is to apply for a reissue of the former patent.
Observations on desirability of Commissioner being represented by counsel on appeals from bis decisions refusing to grant patents.
Barnett-McQueen Co. v. Canadian Stewart Co. (13 Ex. C. R. 186) distinguished.
R. S. Smart, for appellant.
Cassels, J.] [october 23rd, 1913.
IN RE GEBR NOELLE'S APPLICATION FOR A GENERAL TRADE-MARK.
Trade-Mark and Design Act (R. S. 1906, ch. 71) see. U (a) and (b)—Interpretation — General and Specific TradtMarks—Definition.
Under the language of section 4, sub-section (a) of the Trade-Mark and Design Act (R. S. 1906, ch. 71), a general trade-mark means a trade-mark used in connection with the various articles in which the proprietor deals in this trade, and may cover several classes of merchandise if the proprietor is trading in their several classes.
On the other hand, under sub.-sec. (b), a specific trademark is limited to a class of merchandise of a particular description, so if the applicant deals in two different classes of merchandise he must apply for two specific trade-marks, one applicable to each class.
(2) While a general trade-mark would cover all the classes of merchandise in which tbe applicant deals, it would not confer an unlimited right to the mark the world over as against anyone carrying on an entirely different business who applies for a specific trade-mark consisting of tbe same mark as applied to goods not manufactured by the owner of the general trade-mark.
W. L. Scott, for applicant.
R. V. Sinclair, K.C., for Minister of Agriculture.
THE KOG v. BRADBURN & WEBB, (No. 1751).
Public Harbour—Navigable Waters—Water Lots—Set-off— Increased Value of Remaining Lands by Reason of Public Work.
Proceedings by the Crown for the expropriation of certain lands bordering on the .Kaministiquia river at Fort William were taken with a view to the widening of the channel of the river. In carrying out the works, a road-allowance which intervened between the lands taken and the water of the river was expropriated leaving the lands with a frontage on the river subsequently widened.
Held, that the advantage to the balance of the lands equalized any damage to the land-owners over and above the amounts offered as compensation by the Government.
(2) Water lots had been granted after Confederation in the river by the province of Ontario. The question arose as to the compensation to be paid for these water lots.
Held, that the waters of the river were navigable waters within the statute (R. S. 1906, ch. 115) from bank to bank, and that these water lots could not be built upon by the owners thereof without the assent of the Dominion authorities.
(3) The contention was raised on the part of the Crown that the waters in question formed part of a public harbour as defined by the Confederation Act.
Held, that upon the facts they did not form part of such public harbour.
Pitblado, K.C., and F. R. Morriss, for defendants.
POWER OF MUNICIPALITY TO PREVENT OVERCROWDING OF STREET CARS.
By Herbert C. Shattuck, Of The New York Bar.
Owing to the rapid increase in the population of the United States in general in recent years, and especially owing to the excessive increase in urban population, the problem of transportation which faces the modern American city is a serious one. Everywhere is seen a continual expansion of transportation facilities. The smaller cities which formerly got along very well with single-track ftreet railways now find them inadequate and are double-tracking their streets and multiplying their car lines; the larger cities have already been compelled to resort to the air above, the earth beneath, and the waters under the earth in order to find room for their steadily increasing streams of traffic. Even as early as 1887, Judge Francis M. Finch recognised this inevitable condition when he declared that street railways may occupy every street in a city and iron the whole surface, or spin their webs in the air over every avenue, or undermine the entire system of city streets.1
The United States census of 1910 showed that on June 30, 1907, the number of pas'enger street cars in use in the whole country was 70,016, an increase for the preceding five years of 16 per cent., and that the number of passengers carried upon those cars during the fiscal year ending on that date was over 9,500,000,000, an increase in the same period of 63 per cent. When analyzed, these figures indicate the enormous part played by the street railway in our time. Indeed the much criticized street car might almost be called the star performer on the stage of our modern city life. The figures quoted shew that the street cars of the nation in that one year performed a service equivalent to carrying every man, woman, and child in the country one hundred times; that the number of passengers carried on each ear each day of the year averaged somewhat more than 370. It can easily be seen that, without some fuch method of public conveyance, the modern city would never have been possible, and that if public street transportation should now be abolished, the city would be absolutely demoralized.
Witness the havoc wrought even in an hour with the "power oft"
Naturally, then, the matter of street railways is one in tvhich the public is chiefly and vitally interested, and their construction and operation are always charged with this public interest. The authority to make use of the public streets of a city for railroad purposes resides in the state and is a part of the sovereign power, and the right or privilege of constructing and operating railroads in the streets must always proceed from that source. City authorities derive all their power in respect to the granting of such rights from the legislature, and must exercise it in the manner and upon the conditions prescribed by the statute.2
Ordinarily the common council 01 other legislative body of a municipality is by statute clothed with power to regulate the streets by ordinance, and to impose reasonable regulations upon street railroads in their use of the streets. And a grant to a corporation of the right to transact business in the streets confers no immunity from any police control to which a citizen could be subjected, and a reasonable 'regulation of the enjoyment of a franchise is not a denial of the right nor an invasion of the franchise.8
Although a street railway franchise may constitute a contract within the protection of the Constitution of the United States, yet such contract must be deemed to have been accepted by the railway company subject to the police power of the municipality to regulate the manner in which the company shall use the streets.4
Reasonable police regulations concerning the operation of cars in the public streets in the interest of public safety, comfort, and convenience are sanctioned on the ground of necessity. Corporations or individuals maintaining tracks and running cars in the public thoroughfares may be compelled to do whatever is within reason required to promote these objects.8
This power of the municipality to regulate the operation of street railways within its jurisdiction is a broad one, and ordinances intended for the purpose will not be declared unreasonable and void by the Courts except for good cause
• Beelman v. Third Ave. R. Co.. 153 N. Y. 144. 47 N. E. 277. ■fl Nellis, Street Railroads. 2nd ed. §117.
'People ex rel. Geneva v. Geneva. W. S. F. & C. L. Traction Co.. 112 App. D\y. 581. 98 N. Y. Snpp. 719. •M<.Quillin. Mun. Corp. §953.