Opinion of the Court.

and while Congress prescribed the time within which this mandate was to be executed, there is neither in terms nor by implication any subordination of the power to the matter of time.

Again, it must be noticed that the first day of January was Sunday, that is, a dies non, and a power that may be exercised up to and including a given day of the month may generally, when that day happens to be Sunday, be exercised on the succeeding day. So that it is a matter worthy at least of consideration whether the power was not exercised within the very limits of time prescribed by the act.

It is well in this respect to compare this section with section 3. By that the President was authorized to honorably discharge, with pay and allowances, officers who should apply on or before January 1, 1871. By that section a reduction through the voluntary act of army officers was contemplated, and such voluntary action was authorized and invited to be had on the first day of January. While section 12 was not dependent upon section 3, yet it is obvious that action so voluntarily taken by any army officer would limit the amount of enforced reduction, and to that extent relieve the President from embarrassment in the selection authorized by section 12; and there was a propriety, if rothing else, in waiting until the close of the first day of January before exercising the power of selection and mustering out.

It will also be noticed that section 12 places no limitation on the time within which the President is authorized to transfer officers to the list of supernumeraries. If voluntary resignation by the close of the first day of January made sufficient reduction, there would be no necessity of transferring any to the list of supernumeraries, and it was only the supernumer ary officers remaining after the 1st of January — that is, the officers then found not to be needed for the service. who were to be mustered out under that section. There was, therefore, no requirement that the President should transfer to the supernumerary list before the close of the first of January; the number which it was necessary to transfer could not be absolutely determined until the close of that day, and it was only those who, at the close of that day, were not needed

Opinion of the Court.

in the service, that the President could muster out. All these matters justified the action of the President taken on the 2d of January, and if they do not establish that it was in full and literal compliance with the exact provisions of section 12, they certainly leave so slight a departure as scarcely to be worthy of mention. It is certainly no such deviation from the prescribed course as to vitiate the order and thus nullify the express direction of Congress.

But we are not limited to this. Full power of legislation in the matter of increase and reduction of the army is with Congress, It prescribed in this act the proceedings by which that reduction was to be accomplished. In pursuance of that act certain proceedings were had. The power which can direct what proceedings shall be had can approve and make valid any proceedings which are actually taken. The power which can give authority to act can ratify any act that is taken, and generally legislative recognition of an act or a corporation validates the act or the corporation, although neither one nor the other may have had full prior legal authority. Comanche County v. Lewis, ante, 198.

There was but one order issued under section 12 for the mustering out of supernumerary officers. In that order were many names besides that of the appellant, and the act of March 3, 1875, 18 Stat. 497, c. 159, § 2, refers to "any person who was mustered out as a supernumerary officer of the army with one year's pay and allowances," under the act of 1870, that we have been considering. Further, on April 8, 1878, 20 Stat. 35, c. 50; 25th of February, 1879, 20 Stat. 321, c. 100; March 3, 1879, 20 Stat. 354, c. 175; and March 3, 1881, 21 Stat. 510, c. 151, acts were severally passed authorizing the restoration to the army of John A. Darling, Michael O'Brien, Philip W. Stanhope and Redmond Tully, who had been mustered out by this order of January 2, 1871, and those acts all assume the validity of that order. There has been thus It is too late, there

full legislative recognition of its validity. fore, now to enquire as to whether it was in technical compliance with the procedure prescribed by the act of 1870.

We see no errors in the ruling of the Court of Claims, and its judgment is

Affirmed.

Statement of the Case.

CORBIN v. GOULD.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

No. 131. Argued November 22, 1889.- Decided February 3, 1890.

The trade-mark for tea (No. 9952) registered in the Patent Office by Ingraham, Corbin & May December 27, 1881, was for the combination of the figure of a diamond and the words "The Tycoon Tea" enclosed in it; and its registration conferred no exclusive right to the use of the word "Tycoon" considered by itself.

THIS was a suit in equity brought in the court below by Calvin R. Corbin and Horatio N. May, copartners as Corbin, May & Company, doing business in Chicago, against Walter J. Gould, Edward Telfer, David D. Cady and L. F. Thompson, copartners as W. J. Gould & Company, doing business in 'Detroit, for the alleged infringement of a trade-mark.

The bill filed on the 24th of September, 1885, alleged substantially as follows: That for over six years complainants had been engaged in manufacturing, preparing and shipping to the United States, and selling in the United States and elsewhere, a particular qut lity of tea, of which their immediate predecessors in business, Ingraham, Corbin & May, were the first and exclusive manufacturers, importers and wholesale dealers in this country; that during this period they had imported large quantities of such tea, which, by reason of its superior quality and because of the advertising they gave it, became well and favorably known, and was sold extensively in the chief cities and towns of the United States, particularly in Michigan; that said particular tea was known as "Tycoon Tea," the word "Tycoon" being properly attached to the cases and coverings in which the tea was imported; that this name "Tycoon" was given by them to their tea in 1879 in order to more clearly identify it, and had since been used as their adopted trade-mark for it; that having complied with the act of Congress in such case made and provided, and with

Statement of the Case.

the regulations prescribed by the Commissioner of Patents, they procured the registration and recording of said trademark in the Patent Office on the 27th of. December, 1881, and received from the Commissioner of Patents a certificate, [No. 9952], showing such record; that since the word "Tycoon" was first applied by them as a trade-mark, and since the date of such registration, the defendants, confederating with di ers other persons in different parts of the United States, with full knowledge of complainants' rights under and by virtue of their trade-mark, in violation thereof, without complainants' consent, and with the intent fraudulently to divert to themselves complainants' trade in such tea, put upon the market in Detroit and elsewhere large quantities of tea in packages or cases of the same size and general appearance as those used by complainants, with the word "Tycoon" stamped thereon in imitation of complainants' trade-mark- all of which was intended to deceive and mislead the public into buying defendants' tea, which is of an inferior quality, greatly to the injury of the reputation of complainants' tea; that by reason of such fraudulent acts and practices on the part of defendants, complainants had been deprived of great gains and profits in the sale of their tea, and had been damaged more than $10,000; and that defendants were still using the aforesaid facings or labels with the word "Tycoon" stamped thereon upon tea, and threaten to continue to do so, to the great injury and damage of plaintiffs. The bill prayed for an injunction to restrain the defendants and their agents from the further use of complainants' trade-mark, for an accounting, and for damages.

Upon the filing of this bill, supported by a number of affidavits corroborating its allegations, the court issued a temporary restraining order as prayed for, and the defendants thereupon filed their answer denying specifically all the material allega tions of the bill. The answer further alleged that the word "Tycoon" could not have been lawfully adopted and used as a trade-mark, because it had been a word in common use in trade as a brand or name for various kinds of tea imported from Japan, for many years prior to the time when complain

Argument for Appellants.

ants claim to have adopted it as a trade-mark. It further set forth that the defendants had been using the word "Tycoon" on the facings or labels of their tea in connection with the word "chop;" but it denied that these labels bore any more similarity to those of complainants than is usually the case with tea labels, and alleged that except in the word "Tycoon" there was no resemblance whatever between them. It, therefore, prayed that the bill be dismissed.

Considerable testimony was taken in the case, and the court below, on the 14th of June, 1886, rendered a decree dismissing the bill, without delivering any opinion. An appeal from that decree brought the case here.

Mr. Lewis L. Coburn for appellants.

I. The complainants, having acquired a valuable interest in the good will of their trade in a specially prepared, pure, uncolored and unadulterated tea, and having adopted a particular trade-mark indicating to their customers that the article which was made by their authority and sold by them possessed those superior qualities, are entitled to protection against any one who attempts to deprive them of their trade or customers by using substantially the same name, or such devices and representations as would deceive the trade. McLean v. Fleming, 96 U. S. 245.

II. Where a firm has adopted and used a trade-mark for a number of years to denote a special kind of tea and built up a large trade, the firm should be protected in the use of its trade-mark as against imitations, even though it be proven that said trade-mark had previously been used as a trademark for the same class of goods, provided the first user had abandoned it. Symons v. Greene, 28 Fed. Rep. 834. The plaintiff in that case adopted the word "Eureka" to denote a special kind of cement. He was held to be entitled to an injunction even though another firm had used it for several years before to designate a certain kind of cement, but had discontinued its use.

III. The prior use must be either such continued use as to