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it be deemed a tax upon the goods themselves, but often been presented to the courts, and the recogis merely a levy made upon the capital invested (88). nized doctrine is that, in the absence of congres
If the goods are brought from a foreign country sional action, the State may authorize the building (and not simply from another State) are still in of a bridge over navigable streams lying entirely the original package and have not become a part within its boundaries, and the fact that the stream of the mass of domestic property within the State, connects with interstate waterways is immathey cannot be taxed (89).
terial (102). However much the federal authority has cur- In Caldwell v. American Bridge Company (103) tailed the rights of States respecting interstate the court say: “The commercial power of concommerce, the subject of ports and harbors has gress is exclusive of State authority only when the been left largely to their control, upon the ground subjects upon which it is exerted are national in that the subject is not one requiring or aumitting their character and admit and require uniformity of national regulation. Hence State laws have of regulations affecting alike all the States; and been upheld which relate to pilotage fees (90), ferry that when the subjects within that power are local franchises (91), the floating of logs (92), the regu- in their nature or operation or constitute mere aids lation of harbors (93), the draws of bridges (94) to commerce the States may provide for their reguand the quarantine of vessels (95).
lation and management until congress intervenes The State may levy wharfage duties, even on and supersedes their action.” The same doctrine interstate vessels, and, if such taxes are not tonnage has been held to apply to the building of a bridge duties in disguise, but are imposed in good faith for over an interstate stream which does not lie wholly wharfage purposes, they are valid, and the surplus within the State (104). But a State cannot reguof the funds thus obtained, after devoting a por- late the tolls of an interstate bridge (104a). tion to the repair and maintenance of the wharf,
As to the instruments of commerce, the State may be turned over to the general treasury of the possesses a power of taxation which is not deState (96).
stroyed by the commerce clause of the Constitution, But, if the State travels beyond its just powers provided the tax is imposed upon the vessel, railand interferes directly with the loading or unload- road coach, etc., as property within the State and ing of interstate or international vessels, by the
instrument of traffic between the vessel's own crew, the regulation is unconstitu- States (105). tional (97).
Finally, States retain the power to regulate the Respecting natural or artificial waterways lying fisheries within their territory by prohibiting seinwithin the State, the latter may pass laws regulat- ing or dredging, if congress has failed to act (106). ing the improvement of such streams (98), and may exact tolls for the use of canals constructed by in the control of interstate telegraph lines.
Cases have recently arisen involving State action
The it (99).
State has an unquestionable right to protect its So it may forbid vessels from anchoring in the
citizens from the danger of rotten or overloaded streams of the State within certain prescribed
poles standing along its highways (107), and limits (100), but it cannot, without the consent of
municipalities may exact a rental fee for the use congress, close an interstate highway, even though
of the streets in the erection of poles (108). the stream lies wholly within the borders of the
But, if this rental is to an amount which grossly State (101). The subject of regulating interstate bridges has exceeds the cost of inspection and other expenses
resulting to the city from the location of poles and (88) Oliver Co. v. Speed, 87 Fed. Rep., 408.
(89) Brown v. Maryland, 12 Wheat., 425; Cook v. (102) The Passaic Bridges, 3 Wall. (U. S.), AppenPa., 97 U. S., 566; May v. New Orleans, 178 U. S., 496. dix, 782; Gilman v. Phila., 3 Wall. (U. S.), 713; Cald(90) Cooley v. Board, 12 How., 299.
well v. American Bridge Co., 113 U. S., 205; Lake Shore (91) Conway v. Taylor's Ex., 1 Black, 603.
Ry. Co. v. Ohio, 165 U. S., 365. (92) Lindsay Co. v. Mullen, 176 U. S., 126.
(103) Caldwell V. American Bridge Co., 113 U. S., (93) County of Mobile v. Kimball, 102 U. S., 691. 205, 210. (94) Escanaba Co. v. Chicago, 107 U. S., 678.
(104) Rhea v. Newport Co., 50 Fed. Rep., 16; Wil(95) Morgan Co. v. La., 118 U. S., 455.
liamette Bridge Co. v. Hatch, 125 U. S., 1. (96) Transportation Co. v. Parkersburg, 107 U. S., (104a) Covington Bridge Co. v. Ky., 154 U. S., 204. 691; Ouachita Co, V. Aiken, 121 U. S., 444.
(105) Pullman Car Co. v. Nolan, 22 Fed. Rep., 276; (97) Cuban Steamship Co. v. Fitzpatrick, 66 Fed.
McRea v. Bowers, 90 Fed. Rep., 360; Pickard v. PullRep., 63.
man Co., 117 U. S., 34; Tenn. Pullman Co., 117 (98) Willson v. Blackbird Co., 2 Pet., 245; Pound v.
C. S., 51. Turck, 95 U. S., 459; Lindsay Co. v. Mullen, 176 U. S., (106) Corfield v. Corye, 114 Wash. C. C. Rep., 371;
Manchester v. Mass., 139 U. S., 240. (99) Huse v. Glover, 119 U. S., 543.
(107) Michigan Tel. Co. v. Charlotte, 93 Fed. Rep., (100) Green v. Steamer Helen, 1 Fed. Rep., 916. (101) Leovy v. U. S., 92 Fed. Rep., 344.
(108) St. Louis v. W. U. Tel. Co., 148 U. S., 92.
wires along its thoroughfares, the regulation will subjects whch are pre-eminently suited to State be declared invalid (109).
regulation, e. g., pilots, harbors, wharves, buoys, A law has been held unconstitutional which per- fisheries, bridges, quarantine, etc. mitted a board of commissioners of subways to 5. The silence of congress does not prevent the provide conduits for electrical wires and compel States from exercising their police power within telegraph companies to lay their wires therein, their own boundaries, provided they do not thereby the telegraph companies being required to pay a directly embarrass interstate commerce, although reasonable rental for the privilege. The act was such regulation may incidentally and indirectly enforced even against a telegraph company which affect it, and to this end the States may pass laws was using the post roads within the State, under respecting public health, safety, morals, protection the express authority of congress. It was held! from fraud and imposition and the general welfare. that the grant of this power by congress was in
HENRY M. DOWLING. subservience to the police power of the State. The Indianapolis, Ind. court said: “Persons and corporations enjoying grants and privileges from the United States, exer
RIGHT OF PRIVACY. cising federal agencies and engaged in interstate commerce, are not beyond the operation of the laws
New YORK COURT OF APPEALS. of the State in which they reside or carry on their business, and it is only when those laws incapacitate or unreasonably impede them in the exercise of ABIGAIL M. Roberson, an Infant, by Her Guardian their federal privileges or duties and transcend the
ad litem, MARGARET E. BELL, Respondent, v. The
ROCHESTER FOLDING Box COMPANY and THE powers which each State possesses over its purely
FRANKLIN Mills COMPANY, Appellants. domestic affairs, whether of police or internal com
The complaint alleged that one of the defendants, merce, that they invade the national jurisdiction" (110).
a mill company, had, without the plaintiff's knowl
edge or consent, obtained her photograph and was Accordingly, a State law which punishes tele- printing her likeness upon its advertising bills; graph companies for failing to deliver messages that above her portrait was printed the words promptly is not invalid, though applying to inter
“Flour of the Family,” and below it the name of state dispatches, where the law includes only the a brand of flour and of the defendant's mills; that receiving station, which is within the enacting this had humiliated her and caused her mental disState. This is really an act in aid of interstate tress and sickness. An injunction was asked for commerce and not an interference with it (111). restraining the publication of her portrait and for But, if the law attempts to operate beyond the damages, Held, that the complaint did not state a
cause of action. limits of the State enacting it and affixes a penalty, in favor of the sender of an interstate message, Fourth Department, affirming a judgment of the
Appeal from a judgment of the Appellate Division, for failure to deliver promptly in another State, the
Special Term overruling demurrer the law is invalid (112).
complaint., Our conclusions are:
Elbridge L. Adams, for appellants; Milton E. 1. Neither the commerce clause of the Consti- Gibbs, for respondent. tution nor the earlier decisions of the Supreme Parker, Ch. J.— The Appellate Division has certiCourt of the United States forbid the States from fied that the following questions of law have arisen passing laws affecting interstate commerce. in this case and ought to be reviewed by this court: 2. By judicial construction the power over most
1. Does the complaint herein state
cause of branches of interstate traffic has been vested ex
action at law against the defendants or either of
them? 2. Does the complaint herein state a cause clusively in congress.
of action in equity against the defendants or either 3. If congress fails to act in regard to these of them? These questions are presented by a desubjects over which it exercises exclusive control,
to the complaint, which is put upon the its silence is regarded as regulation and the States ground that the complaint does not state facts cannot act, whether the subject admits of or re- sufficient to constitute a cause of action. quires national regulation.
As a demurrer admits not only those facts which 4. The silence of congress is not a prohibition are expressly alleged in the complaint, but everyupon the States to legislate upon a limited class of thing which can be implied by fair and
sonable intendment from its allegations (Marie (109) Phila. V. W. U. Tel. Co., S2 Fed. Rep., 797. Garrison, 83 N. Y., 14, 23),
to (110) W.
U. Tel. Co. v. Mayor of N. Y., 38 Fed. inquire whether the complaint, regarded from the Rep., 552. (111) W. U. Tel. Co, V. James, 162 U. S., 650.
standpoint of this rule. can be said to show any (112) W. U. Tel. Co. v. Pendleton, 122 U. S., 317. right to relief either in law or in equity.
The complaint alleges that the Franklin Mills which the complaint fixes at the sum of $15,000. Company, one of the defendants, was engaged in There is no precedent for such an action to be a general milling business and in the manufacture found in the decisions of this court; indeed the and sale of four; that before the commencement learned judge who wrote the very able and interestof the action, without the knowledge or consent ing opinion in the Appellate Division said, while of plaintiff, defendants, knowing that they had 110 upon the threshold of the discussion of the question: right or authority so to do, had obtained, made, “ It may be said in the first place that the theory printed, sold and circulated about 25,000 lithographic upon which this action is predicated is new, at prints, photographs and likenesses of plaintiff, made least in instance if not in principle, and that few in a manner particularly set up in the complaint; precedents can be found to sustain the claim inade that upon the paper upon which the likenesses were by the plaintiff, if indeed it can be said that there printed and above the portrait there were printed, are any authoritative cases establishing her rigiit in large, plain letters, the words “ Flour of the to recover in this action.” Nevertheless, that court Family," and below the portrait in large capital reached the conclusion that plaintiff had a good letters “ Franklin Mills Flour,” and in the lower cause of action against defendants, in that defendright-hand corner in smaller capital letters “Roches-ants had invaded what is called a right of privacy" ter, Folding Box Company, Rochester, N. Y.;” - in other words, the right to be let alone. Venthat upon the same sheet were other advertisements tion of such a right is not to be found in Blackstone, of the four of the Franklin Milis Company; that Kent or any other of the great commentators upon those 25,000 likenesses of the plaintiff thus orna- the law, nor, so far as the learning of counsel or mented have been conspicuously posted and dis- the courts in this case have been able to discover, played in stores, warehouses, saloons and other does its existence seem to have been asserted prior public places; that they have been recognized by to about the year 1890, when it was presented with friends of the plaintiff and other people with the attractiveness and no inconsiderable ability in the result that plaintiff has been greatly humiliated by Harvard Law Review (vol. 4, page 193) in in the scoffs and jeers of persons who have recognized article entitled, “Rights of a Citizen - To His her face and picture on this advertisement, and hier: Reputation." good name has been attacked, causing her great The so-called right of privacy is, as the phrase distress and suffering both in body and mind; that suggests, founded upon the claim that a man has she was made sick and suffered a severe nervous the right to pass through this world if he wills, withshock, was confined to her bed and compelled to out having his picture published, his business enteremploy a physician, because of these facts; that de- prises discussed, his sucessful experiments written fendants had continued to print, make, use, sell and up for the benefit of others, or his eccentricities circulate the said lithographs, and that by reason commented upon either in handbills, circulars, cataof the foregoing facts plaintiff had suffered dam- logues, periodicals or newspapers, and, necessarily, ages in the sum of $15.000. The complaint prays that the things which may not be written and pubthat defendants be enjoined from making, printing, lished of him must not be spoken of him by his publishing, circulating or using in any manner any neighbors, whether the comment be favorable or likenesses of plaintiff in any form whatever, for otherwise. While inost persons would much prefer further relief (which it is not necessary to consider to have a good likeness of themselves appear in a here) and for damages.
responsible periodical or leading newspaper rather It will be observed that there is no complaint than upon an advertising card or sheet, the doctrine made that plaintiff was libeled by this publication which the courts are asked to create for this case of her portrait. The likeness is said to be a very would apply as well to the one publication as the good one, and one that her friends and acquaint-other, for the principle which a court of equity is ances were able to recognize; indeed, her grievance asked to assert in support of a recovery in this is that a good portrait of her, and, therefore, one action is that the right of privacy exists and is eneasily recognized, has been used to attract attention forceable in equity, and that the publication of that toward the paper, upon which defendant mill com- which purports to be a portrait of another person, pany's advertisements appear. Such publicity, even if obtained upon the street by an impertinent which some find agreeable, is to plaintiff very dis- individual with a camera, will be restrained in equity tasteful, and thus, because of defendant's imperti- on the ground that an individual has the right to nence in using her picture without her consent for prevent his features from becoming known to those their own business purposes, she has been caused outside of his circle of friends and acquaintances. to suffer mental distress where others would have If such a principle be incorporated into the body appreciated the compliment to their beauty implied of the law through the instrumentality of a court in the selection of the picture for such purposes ; l of equity, the attempts to logically apply the prinbut, as it is distasteful to her, she seeks the aid of ciple will necessarily result not only in a the courts to enjoin a further circulation of the amount of litigation, but in litigation bordering upon lithographic prints containing her portrait made as the absurd, for the right of privacy, once established alleged in the complaint, and, as an incident thereto, as a legal doctrine, cannot be confined to the reto reimburse her for the damages to her feelings, 'straint of the publication of a likeness, but must necessarily embrace as well the publication of a ing mass of precedents, this theory of a personal word-picture, a comment upon one's looks, conduct, conscience was abandoned; and the conscience,' domestic relations or habits. And were the right which is an element of the equitable jurisdiction, of privacy once legally asserted it would necessarily came to be regarded, and has so continued to the be held to include the same things if spoken instead present day, as a metaphorical term, designating the of printed, for one, as well as the other, invades the common standard of civil right and expediency right to be absolutely let alone. An insult would combined, based upon general principles and limited certainly be in violation of such a right and with by established doctrines to which the court appeals, many persons would more seriously wound the feel- and by which it tests the conduct and rights of suitings than would the publication of their picture. ors-a juridical and not a personal conscience" And so we might add to the list of things that are (Pomeroy's Eq. Jur., sec. 57). spoken and done day by day which seriously offend The importance of observing the spirit of this the sensibilities of good people to which the prin- rule cannot be overestimated, for, while justice in ciple which the plaintiff seeks to have imbedded in a given case may be worked out by a decision of the doctrine of the law would seem to apply. I the court according to the notions of right which have gone only far enough to barely suggest the govern the individual judge or body of judges comvast field of litigation which would necessarily be prising the court, the mischief which will finally opened up should this court hold that privacy exists result may be almost incalculable under our system, as a legal right enforceable in equity by injunction, which makes a decision in one case a precedent for and by damages where they seem necessary to give decisions in all future cases which are akin to it in complete relief.
the essential facts. The legislative body could very well interfere So in a
case like the one before us, which is and arbitrarily provide that no one should be per- concededly new to this court, it is important that mitted for his own selfish purpose to use the picture the court should have in mind the effect upon future or the name of another for advertising purposes litigation and upon the development of the law without his consent. In such event no embarrass- which would neces
cessarily result from a step so far ment would result to the general body of the law, outside of the beaten paths of both common law for the rule would be applicable only to cases pro- and equity, assuming — what I shall attempt to show vided for by the statute. The courts, however, be- in a moment - that the right of privacy as a legal ing without authority to legislate, are required to doctrine enforceable in equity has not, down to this decide cases upon principle, and so are necessarily time, been established by decisions. embarrassed by precedents created by an extreme The history of the phrase "right of privacy” in and, therefore, unjustifiable application of an old this country seems to have begun in 1890, in a principle.
clever article in the Harvard Law Review -- already The court below properly said that “while it may referred to - in which a number of English cases be true that the fact that no precedent can be found were analyzed, and, reasoning by analogy, the conto sustain an action in any given case is cogent evi- clusion reached that — notwithstanding the dence that a principle does not exist upon which the unanimity of the courts in resting their decisions right may be based, it is not the rule that the want upon property rights in cases where publication is of a precedent is a sufficient reason for turning the prevented by injunction — in reality such prevention plaintiff out of court,” provided – I think should was due to the necessity of affording protection to be added – there can be found a clear and unequivo- thoughts and sentiments expressed through the cal principle of the common law which either medium of writing, printing and the arts, which is directly or mediately governs it or which by anal- like the right not to be assaulted or beaten; in other ogy or parity of reasoning ought to govern it. words, that the principle, actually involved though
It is undoubtedly true that in the early days of not always appreciated, was that of an inviolate chancery jurisdiction in England the chancellors personality, not that of private property. were accustomed to deliver their judgments without This article brought forth a reply from the Northregard to principles or precedents, and in that way western Review (vol. 3, p. 1) urging that equity the process of building up the system of equity has no concern with the feelings of an individual went the chancellor disregarding absolutely or with considerations of moral fitness, except as many established principles of the common law. the inconvenience or discomfort which the person * In no other way,” says Pomeroy, “could the system may suffer is connected with the possession or enof equity jurisprudence have been commenced and joyment of property, and that the English authoricontinued so as to arrive at its present proportions ties cited are consistent with such view. Those (Pomeroy's Eq. Jur., sec. 48). In their work the authorities are now to be examined in order that chancellors were guided not only by what they we may see whether they were intended to and did regarded as the eternal principles of absolute right, mark a departure from the established rule which but also by their indivdual consciences, but after a had been enforced for generations; or, on the other time, when “the period of infancy was passed and hand, are entirely consistent with it. an orderly system of equitable principles, doctrines The first case is Prince Albert v. Strange (1 Macn. and rules began to be developed out of the increas. 1 & G., 25, 2 DeG. & S., 652). The queen and the
prince, having made etchings and drawings for their reduced to writing, but granted the injunction on own amusement, decided to have copies struck off the ground that it was a breach of confidence on the from the etched plates for presentation to friends part of a pupil who was admitted to hear the and for their own The workman employed, lectures to publish them, inasmuch as they were however, printed some copies on his own account, delivered for the information of the pupils, and not which afterwards came into the hands of Strange, for sale and profit by them. who purposed exhibiting them, and published a Mayall v. Highbey (1 H. & C., 188) was also descriptive catalogue. Prince Albert applied for a case where an injunction was granted and nominal an injunction as to both exhibition and catalogue, damages awarded on the ground that plaintiff had and the vice-chancellor granted it, restraining de- a property right in certain photographic negatives fendant from publishing “at least by printing or which he had loaned to a person who subsequently writing, though not by copy or resemblance," a became insolvent and whose assignee, without right, description of the etchings. An examination of the sold them to defendant, who printed copies from opinion of the vice-chancellor discloses that he them which he published and sold. found two
for granting the injunction, In Duke of Queensbury v. Shebbeare (2 Eden, namely, that the property rights of Prince Albert 329) the Earl of Clarendon delivered to one Gwynne had been infringed, and that there was a breach of an original anuscript of his father's, “Lord trust by the workman in retaining some impressions Clarendon's History." Gwynne's administrator for himself. The opinion contained no hint what- afterwards sold it to Shebbeare, and the court upon ever of a right of privacy separate and distinct from the application of the personal representatives of the right of property.
Lord Clarendon, restrained its publication on the Pollard v. Photographic Co. (L. R., 40 Ch. Div., ground that they had a property right in the manu345) is certainly not an authority for granting an script which it was not intended that Gwynne should injunction on the ground of threatened injury to have the benefit of by multiplying the number of the feelings, although it is true, as stated in the copies in print for profit. opinion of the Appellate Division, that the court In not one of these cases, therefore, was it the did say in the course of the discussion that the basis of the decision that the defendant could be right to grant an injunction does not depend upon restrained from performing the act he was doing the existence of property; but the decision was, in or threatening to do on the ground that the feelings fact, placed upon the ground that there was a breach of the plaintiff would be thereby injured; but, on of an implied contract. The facts, briefly stated, the contrary, each decision was rested either upon were that a photographer had been applied to by the ground of breach of trust or that plaintiff had
woman to take her photograph, she ordering a a property right in the subject of litigation which certain number of copies, as is usual in such cases. the court could protect. The photographer made copies for himself and un- A more recent English case, decided in 1898, is dertook to exhibit them, and also sold copies to a more nearly in point and negatives the contention stationer, who used them as Christmas cards. Their that plaintiff may restrain an unauthorized publicaaction was restrained by the court on the ground tion which is offensive to him — namely, Dockreil that there was an implied contract not to use the , v. Dougall (78 L. T. R., 40). In that case defendnegative for any other purpose than to supply the ant, the owner of a medicine called “Sallyco," pubsitter with copies of it for a price. During the argu- lished the following substantially true but unaument of plaintiff's counsel, the court asked this thorized statement about plaintiff: “Dr. Morgan question: “Do you dispute that if the negative Dockrell, physician to St. John's Hospital, London, likeness were taken on the sly the person who took is prescribing Sallyco as an habitual drink. Dr. it might exhibit copies?” Counsel replied: “In Dockrell says nothing has done his gout so much that case there would be no consideration to support good.” In the course of the nion the court said, a contract."
in effect, that plaintiff claimed to be entitled to an In Gee v. Pritchard (Swanst., 402) B attempted to injunction restraining defendant from using plaintprint a private letter written him by A, and he was ' iff's name in his advertisements on the ground that restrained on the ground that the property of that an injunction should be granted in every such case private letter remained in A, B having it only for where it can be shown that the use of the plaintiff's the qualified purpose for which it was sent to him, name is unauthorized and is calculated to injure him the basis of the decision, therefore, being the idea in his profession, and after saying that he did not of plaintiff's property in the thing published, as think that this was right, he stated the proper rule being the product of his mind, written by him and to be that “In order that an injunction may issue put into the hands of B for a limited purpose only. to restrain a defendant from using a plaintiff's name
The same judge, Lord Eldon, also granted the the use of it must be such as to injure the plaintiff's injunction in Abernathy v. Hutchinson (3 L. J., Ch., reputation or property.” 209), restraining the publication in the Lancet of None of the other English cases brought to our lectures delivered at a hospital by the plaintiff. The attention are claimed to have a direct bearing upon court expressed a doubt in that case whether there this question, and it seems to us very clear that they could be property in lectures which had not been do not in anywise support the position of plaintiff.