a State. And surely we need not pause to point out the difference between such a river flowing upon the surface of the earth and such a substance as gas seeping invisibly through sands beneath the surface.

We have reviewed the cases at some length as they demonstrate the unsoundness of the contention of appellant based upon the right to conserve (we use this word in the sense appellant uses it) the resources of the State, and that the statute finds no justification in such purpose for its interference with private property or its restraint upon interstate commerce. At this late day it is not necessary to cite cases to show that the right to engage in interstate commerce is not the gift of a State, and that it cannot be regulated or restrained by a State, or that a State cannot exclude from its limits a corporation engaged in such commerce. To attain these unauthorized ends is the purpose of the Oklahoma statute. The State through the statute seeks in every way to accomplish these ends, and all the powers that a State is conceived to possess are exerted and all the limitations upon such powers are attempted to be circumvented. Corporate persons are more subject to control than natural persons. The business is therefore confined to the former, and foreign corporations are excluded from the State. Lest they might enter by the superior power of the Constitution of the United States, the use of the highways is forbidden to them and the right of eminent domain is withheld from them, and the prohibitive strength which these provisions are supposed to carry is exhibited in the fact that the boundary of the State is a highway. If it cannot be passed without the consent of the State, commerce to and from the State is impossible. The situation is not underestimated by appellant, and he says: "If the appellees had the right of way they might engage in interstate commerce, but their desire to engage in interstate commerce is a different thing from the means open to them to procure a right of way." And it is further

said, that "the confusion of the right to engage in interstate commerce with the power to forcibly secure a right of way is the basis of appellees' case."

There is here and there a suggestion that the State not having granted such right the alternative is a grant of it by Congress. But this overlooks the affirmative force of the interstate commerce clause of the Constitution. The inaction of Congress is a declaration of freedom from state interference with the transportation of articles of legitimate interstate commerce, and this has been the answer of the courts to contentions like those made in the case at bar. State ex rel. Corwin v. Indiana & Ohio Oil, Gas & Mining Co., supra; Benedict v. Columbia Construction Co., 49 N. J. Eq. 23, and also in Haskell, Governor, et al. v. Cowham, United States Circuit Court of Appeals, Eighth Circuit. In the latter case the Oklahoma statute was under review, and in response to the same contentions which are here presented these propositions were announced with citation of cases:

"No State by the exercise of, or by the refusal to exercise, any or all of its powers, may prevent or unreasonably burden interstate commerce within its borders in any sound article thereof.

"No State by the exercise of, or by the refusal to exercise, any or all of its powers, may substantially discriminate against or directly regulate interstate commerce or the right to carry it on."

The power of the State of Oklahoma over highways is much discussed by appellant and appellees; the appellant contending for a power practically absolute, as exercised under the statute, making the highways impassable barriers to the pipe lines of appellees. The appellees contend for a more modified and limited right in the State, one not extending beyond an easement of public passage, subject, therefore, to certain rights in the abutting owners, which rights can be transferred; and further contend that even

if the power of the State be not so limited, it cannot be exercised to discriminate against interstate commerce.

The rights of abutting owners we will not discuss, nor the rights derived from them by appellees except to say that whatever rights they had they conveyed to appellees and against them there is no necessity of resorting to the exercise of eminent domain. We place our decision on the character and purpose of the Oklahoma statute. The State, as we have seen, grants the use of the highways to domestic corporations engaged in intrastate transportation of natural gas, giving such corporations even the right to the longitudinal use of the highways. It denies to appellees the lesser right to pass under them or over them, notwithstanding it is conceded in the pleadings that the greater use given to domestic corporations is no obstruction to them. This discrimination is beyond the power of the State to make. As said by the Circuit Court of Appeals in the Eighth Circuit, no State can by action or inaction prevent, unreasonably burden, discriminate against or directly regulate interstate commerce or the right to carry it on. And in all of these inhibited particulars the statute of Oklahoma offends.

And, we repeat again, there is no question in the case of the regulating power of the State over the natural gas within its borders. The appellees concede the power, and, replying to the argument of appellant based on the intention of appellees to erect large pumps to increase the natural rock pressure of the gas, appellees say, "Kansas by legislative enactment forbids the use of artificial apparatus to increase the natural flow from gas wells: Chapter 312, Laws of Kansas, 1909, page 520. To this act the Kansas Natural Gas Company has no objection."

Decree affirmed.

MR. JUSTICE HOLMES, MR. JUSTICE LURTON and MR.

JUSTICE HUGHES dissent.

221 U.S.

Counsel for Appellants.

JACOBS v. BEECHAM.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 139. Argued April 21, 24, 1911.-Decided May 15, 1911.

Corruptio optimi pessima. Sound general principles should not be turned to support a conclusion manifestly improper. Even if the burden of proof is on one manufacturing a named article under a secret formula to prove that one selling an article by the same name is not manufacturing under that formula, there is a prima facie presumption of difference, which protects the owner without requiring him to give up the secret.

The burden is on a defendant who uses plaintiff's trade-name to justify the using thereof.

Where the name of the originator has not left him to travel with the goods the name remains with the manufacturer, as an expression of source and not of character.

The word "Beecham's" as used in connection with pills manufactured by the party of that name is not generic as to the article manufactured but individual as to the producer; and one calling his product by the same name is guilty of unfair trade even if he states that he, and not Beecham, makes them.

The word "patent" as used in connection with medicines does not

mean that the article is patented but that it is proprietary; and there is no fraud on the public in using the word in that sense although the article has not been patented.

The proprietor of a valuable article will not be deprived of protection against unfair trade because of certain trivial misstatements as to place of manufacture and Christian name of manufacturer when both statements were true at one time and it does not appear that the public have been improperly misled.

159 Fed. Rep. 129, affirmed.

THE facts are stated in the opinion.

Mr. George F. Hurd and Mr. Cornelius W. Wickersham (by leave of the court), with whom Mr. Max J. Kohler,

Argument for Appellants.

221 U.S.

Mr. Moses Weill and Mr. Isaac Weill were on the brief, for appellants:

The right to use the name of Beecham is publici juris, and defendant is not guilty of unfair competition. Appellee has no trade-mark. There can be no trade-mark in a proper name. Canal Co. v. Clark, 13 Wall. 311; Brown Chemical Co. v. Meyer, 139 U. S. 540; Corbin v. Gould, 133 U. S. 308; LeClanche Battery Co. v. Western Elec. Co., 23 Fed. Rep. 276; Hopkins on Trade-marks, 2d ed., §§ 40, 53.

No unfair competition has been shown. There is no evidence that defendant's pills were inferior or dissimilar to complainant's. The burden of proving such inferiority or dissimilarity, had it existed, was on complainantappellee, and in the absence of evidence thereon an injunction granted upon that ground would be unwarranted. Baglin v. Cusenier Co., 164, Fed. Rep. 25 (the Chartreuse case); Hostetter Co. v. Comerford, 97 Fed. Rep. 585; Goodyear's &c. Co. v. Goodyear Rubber Co., 128 U. S. 598, 604; LaMont v. Leedy, 88 Fed. Rep. 72.

Appellant has not used the name "Beecham" in any manner whatever calculated to deceive the public into a belief that the goods offered for sale by him are those of the appellee. He sold pills designated as Beecham Pills, manufactured by Mark Jacobs, Maspeth, L. I., N. Y., U. S. A.

If a secret process is unpatented anyone may use it and enter into competition with the original discoverer. Canham v. Jones, 2 Vesey & B. 218; Sarlehner v. Wagner, 216 U. S. 375; Chadwick v. Covell, 151 Massachusetts, 190; Watkins v. Landon, 52 Minnesota, 389.

This principle is also upheld in Marshall v. Pinkham, 52 Wisconsin, 572; Park & Sons Co. v. Hartman, 153 Fed. Rep. 24, 29, 32, 33; Singleton v. Bolton, 3 Douglas, 293; Canham v. Jones, 2 Vesey & B. 218; Burgess v. Burgess, 17 Eng. L. & E. 257; James v. James, L. R. 13 Eq. Cas. 421; Massam v. Thorley's C. F. Co., 6 Ch. Div. 574; and