[215] [216] The allegation of the bill was that a deed under which the plaintiff in the ejectment suit asserted title was executed as a mortgage, with a written contract of defeasance when the money loaned should be repaid. To this bill a demurrer was filed, upon which the court made an order in the following language: "If the plaintiff will amend bill, and bring Afterwards the plaintiffs did filed an amend- } 193-H. "This cause coming on to be heard upon the demurrer of the defendant to the amended bill of complaint filed herein, and the court being fully advised in the premises, it is ordered The appeal is therefore dismissed, and the case remanded to the Circuit Court for further proceedings. GEORGE B. CORNELL, Appt., v. PAUL WEIDNER. (See S. C. Reporter's ed. 261–265.) Reissue of patent-when void. metallic bushings for the bungs of casks, etc., and Argued April 19, 1888. Decided April 30, 1888. that if within fifteen days the plaintiff bring A Affirmed. The facts are stated in the opinion. A plea in bar to the whole bill must reduce the issue to a single point. PPEAL from a decree of the Circuit Court into court the amount of the note and mort- of the United States for the Eastern Disgage set forth in the bill of complaint, with trict of Michigan, dismissing a bill for the ininterest thereon from the time the note be-fringement of a second reissue of letters patert. came due, with interest thereon at ten per cent per annum until November 1, 1879, and from November 1, 1879, to date of this order, at seven per cent per annum, together with all taxes paid by defendant upon the land described in said bill, with interest thereon at ten per cent per annum, then the defendant be restrained from the further prosecution of the cause in ejectment set forth in said bill of complaint, | and entitled Walter Craig v. Henry O. Jones; but if the plaintiff shall fail so to do within the time mentioned, the said demurrer to said bill be sustained, and the said bill of complaint be dismissed, and the defendant herein be allowed to proceed with the prosecution of his said action at law. To the ruling and decision of the court the plaintiffs except." This order, made upon the hearing of the demurrer to a bill in chancery, is wholly irregular. This court, however, has no jurisdiction of the case as it stands, because the order just cited is not a final decree. Something yet remains to be done in order to make it such, and that action depends upon whether or not the complainants will comply with the order to bring in the sum due on the mortgage. If that order is complied with, then a decree should be made, upon the hypothesis on which the order was made, in favor of the complainants in the bill, and quieting their title. If, however, the money is not brought into court, then, according to the theory of the order, the bill of complaint should be dismissed. But, even assuming the right of the court to make the order, as well as its validity, the circumstances under which the bill of complaint is to be dismissed or the relief granted to the complainants named therein, and the sum to be paid, are matters which are yet to be determined, which may turn out either one way or the other, and which, when ascertained, will be the foundation for a final decree. There is no final decree as the matter now stands. • | Beams, Eq. 10; 1 Dan. Ch. 603, note 4; Rhode Island v. Massachusetts, 39 U. S. 14 Pet. 261 (10:447); Giant Powder Co. v. Safety Nitro Powder Co. 19 Fed. Rep. 513. All other defenses except the one made by the plea are cut off. Walker, Patents, § 605; Pitts v. Hall, 2 Blatchf. 229; Blandy v. Griffith, 3 Fish. Pat. Cas. 616. The bill, so far as it is not contradicted by the plea, is admitted to be true. Beams, Eq. 48; Story, Eq. Pl. § 694. The identity of the invention set forth in the original and reissued patents is a matter of legal construction, on a comparison of the two instruments. Seymour v. Osborne, 78 U. S. 11 Wall. 516 (20:33); Stevens v. Pritchard, 10 Off. Gaz. 505; Kerosene Lamp Heater Co. v. Littell, 13 Off. Gaz. 1009; Tucker v. Tucker Mfg. Co. 4 Cliff. 397; Albright v. Celluloid Harness Trimming Co. 12 Off. Gaz. 228. A comparison of the two patents, for the purpose of determining the question of identity of invention, requires an interpretation of the original patent in the light of the state of the art. Eachus v. Broomall, 115 U. S. 429 (29:419); Vance v. Campbell, 66 U. S. 1 Black, 427 (17:168); Garneau v. Dozier, 102 U. S. 230 (26:133). The notch in the flange was not an essential feature of the bush invention, but could be left out, and the essential characteristics of the invention remain unaltered. Carver v. Braintree Mfg. Co. 2 Story, 439; Gong Bell Mfg. Co. v. Clark, 13 Off. Gaz. 275; Chicago Fruit House Co. v. Busch, 2 Biss. 472; Morey v. Lockwood, 75 U. S. 8 Wall. 230 (19:339); 262] Dorsey Harvester Rake Co. v. Marsh, 6 Fish. | and in wrenches for operating the same;" and Under the circumstances shown in this case, there was no unjustifiable delay in applying for reissue 8759. O'Reilly v. Morse, 56 U. S. 15 How. 62, 120, 121 (14: 601, 626, 627); Gage v. Herring, 107 U. S. 640 (27:601); Seymour v. McCormick, 60 U. S. 19 How. 106 (15:562); Giant Powder Co. v. Safety Nitro Powder Co. 19 Fed. Rep. 512. The patentee had a right to broaden the claim of the original in the reissue, to make it cover the actual invention. Odell v. Stout, 22 Fed. Rep. 159; Seymour v. Marsh, 2 Off. Gaz. 675; Chicago Fruit House Co. v. Busch, 2 Biss. 472; Miller v. Bridgport Brass Co. 104 U. S. 350 (26:783); James v. Campbell, Id. 356 (26:786); Driven Well_Cases, 122 U. S. 40, 71 (30:1064, 1074); La Baw v. Hawkins, 6 Off. Gaz. 725; Providence Rubber Co. v. Goodyear, 76 U. S. 9 Wall. 788 (19:566); Battin v. Taggert, 58 U. S. 17 How. 74 (15:37); Gong Bell Mfg. Co. v. Clark, 13 Off. Gaz. 275; Crandal v. Parker Carriage Goods Co. 20 Fed. Rep. 851; Coburn v. Schrader, 22 Off. Gaz. 1538; Western Union Tel. Co. v. Baltimore & O. Tel. Co. 25 Fed. Rep. 32, 35, 36; Thomas v. Shoe Machinery Mfg. Co. 16 Off. Gaz. 542; Becker v. Hastings, 22 Fed. Rep. 827; Morey v. Lockwood, supra; Brown v. Guild, 90 U. S. 23 Wall. 181 (23:161); Bennett v. Fowler, 75 U. S. 8 Wall. 445 (19:431); Marsh v. Seymour, 97 U. S. 348 (24:963); Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat Cas. 387; Poppenhusen v. Falke, 2 Fish. Pat. Cas. 213–220. The presumption of the law is in favor of the identity of the original and reissue. Thomas v. Shoe Machinery Mfg. Co. 16 Off. Gaz. 541; O'Reilly v. Morse, 56 U. S. 15 How. 112 (14:623); Guidet v. Barber, 5 Off. Gaz. 149; Bantz v. Elsas, 6 Off. Gaz. 118; U. S. & Foreign Salamander Felting Co. v. Haven, 3 Dill. 131; La Baw v. Hawkins, 6 Off. Gaz. 725; Carver v. Braintree Mfg. Co. 2 Story, 439; Allen v. Blunt, 3 Story, 742; Seymour v. Osborne, 78 U. S. 11 Wall. 544, 545 (20:38, 39); Smith v. Goodyear Dental Vulcanite Co. 93 U. S. 486 (23:952). Mr. George H. Lothrop, for appellee: The identity of the invention covered by the original and reissue is to be determined by comparison. Ball v. Langles, 102 U. S. 130 (26:105). The reissue is for a different invention from the original patent and first reissue. Giant Powder Co. v. California Powder Works, 98 U. S. 138 (25:82); Swain Turbine & Mfg. Co. v. Ladd, 102 U. S. 412 (26:185); Johnson v. Flushing & N. S. R. R. Co. 105 U. S. 539 (26:1162); Coon v. Wilson, 113 U. S. 277 (28:965). There is no valid excuse for the long delay and this delay is fatal. Miller v. Bridgeport Brass Co. 104 U. S. 350 (26:783); Mahn v. Harwood, 112 U. S. 354 (28: 665); Swain Turbine & Mfg. Co. v. Ladd, supra. Mr. Justice Gray delivered the opinion of the court: This was a bill in equity for the infringement of a second reissue of letters patent. When the facts are understood, the case is clear. The original patent, issued August 29, 1871, No. 118,517, was for an "improvement in metallic bushings for the bungs of casks, etc., described the bushing thus: "A tapering thimble or ring of metal, provided with a flange, b, at its larger end, and having a screw thread, c, on its outer surface, which screw thread is cast on the bushing in the mould, and is capable of immediate use without other finishing. The flange, b, is rounded off at its edge, and is provided at some point in its extent with a V-shaped notch, d, extending into the screw thread." It then described the wrench and its mode of operation, as follows: "E represents the wrench bar, consisting of the slotted plate e and the shank f. The metal of the shank, at its junction with the plate, forms a downward V-shaped projection, l, whose point extends forward toward the centre of the plate e. F represents a tapering core of metal, adapted to fit the bung bushing, a, and secured to the plate e by means of the bolt h and its nut. This core is made separable from the wrench bar, in order that, by providing a number of cores of different sizes, the same wrench may be used for bushing of different diameters. Provision is also made by the slot k for moving the bolt toward the angular projection, which becomes necessary when a smaller core is substituted for a larger one. The wrench is applied by inserting the core into the opening through the bushing, and turning it until the projection falls into the notch d. By means of the core the bushing is kept steady, and is readily prevented from assuming an oblique position in the bung opening; at the same time the operator is enabled to get a better hold on the bushing than by means of the wrenches in common use, which are apt to slip from their seats when used on such difficult work as turning a rough-cast screw into place." The single claim was in these words: "What we claim as our invention, and desire to secure by letters patent is: "The combination, with the notched bung bushing, a, of the wrench, consisting of the bar E, having the slotted plate e and angular projection 7, and the removable core F, substantially as specified." It thus appears that the original patent described a bushing with a V-shaped notch in the flange, and a wrench made with an angular projection to fit that notch, and applied by turn. ing the wrench until the projection fell into the notch; and that all that the patentee claimed as his invention was the combination of the notched bushing with the wrench having a projection to fit it. On August 6, 1872, the patent was reissued in two divisions, No. 5026 (not in this record) being for the wrench, and No. 5027 being for the bushing, describing it as "an annular ring of metal. This ring is made tapering on both its outer and inner sides, and is screw threaded upon its outer side, by which means the same is secured within the aperture in the cask. This thread may be formed by a suitable tool, or may be formed in the mould, as found most advantageous. The larger end of the said ring is provided with a flange B, the outer surface or periphery of which is made in an ovolo shape, and is provided with a V-shaped notch d, which extends inward to a point near the body of the ring. The object of this notch is to allow a suitable wrench, adapted for the purpose, to [263] [264] engage therewith, whereby the said bushing|ing been distinctly limited to a bushing having The claim in that reissue was for "the screwthreaded metallic bung bushing, made tapering upon both its outer and inner sides, and provided with the flange B having the V-shaped notch d, as and for the purpose described." The defendant's plea, that the second reissue was for a different invention from that described or claimed either in the original patent or in the first reissue, was therefore rightly adjudged good by the circuit court, and the decree dis missing the bill is affirmed. The specification and the claim of that re- PANY. in the scheme of the invention." Schumacher SAME, Piffs. in Err., v. SOUTHERN PA- of the specification and the claim of which were SAME, Piffs. in Err., v. NORTHERN RAIL- "Our invention relates to bushings for barrels; and consists of a short metallic tube in exterior form in shape of the frustum of a cone, slightly tapering. The outer surface is screw threaded, to adapt it to be screwed forcibly into the bung hole of the barrel, and to be held securely in place by the contact of the surfaces. The larger end of this tube is provided with an annular flange projecting outwardly, and adapted to rest, when the bushing is screwed to its place in the hole of the barrel, snugly upon the outer surface of the stave. The interior surface of the bushing is also made in the form of a frustum of a cone, and tapers uniformly from the exterior or flanged to the inner end of the bushing. This surface is made smooth and unbroken, and extends in such form quite through from one end of the bushing to the other, so that the wooden or compressible plug or bung to which it is adapted may have a ready and unobstructed entrance, and may pass, if necessary, beyond the inner end of the bushing, and have a uniform bearing-surface throughout the entire length of the bushing." "Having thus described our invention, what we claim as new, and desire to secure by letters patent, is: "A metallic bushing for the bung holes of barrels, made with a flange adapted to rest on the outer surface of the stave, and with an exterior threaded and an interior smooth surface, both tapering from the flanged to the interior end; said inner surface being unbroken and unobstructed, and tapering uniformly from one end of the bushing to the other, as and for the purpose set forth.' WAY COMPANY. SAME, Plffs. in Err., v. CALIFORNIA PA- SAME, Piffs. in Err., v. CENTRAL PA. SAME, Plffs. in Err., v. CENTRAL PA- (See S. C. Reporter's ed. 1-45.) California railroad assessments—U. 8. fran- *1. By the Constitution of California two modes of 2. The State Board of Equalization of California The original patent and the first reissue hav the State as well as across the Territories of the *Head notes by Mr. Justice BRADLEY. [1] nant to the Constitution and laws of the United 4. Congress has authority, in the exercise of its power to regulate commerce among the several States, to construct, or authorize individuals or corporations to construct, railroads across the States and Territories of the United States. [Nos. 660, 661, 662, 663, 664, 1157.] Kimball, 12 Mass. 337; Boody v. Watson, 1 New This case is not distinguishable from Thomson v. Union Pac. R. R. Co. 76 U. S. 9 Wall. 579 (19:792); and Union Pac. R. R. Co. v. Peniston, 85 U. S. 18 Wall. 5 (21:787); U. S. v. Union Pac. R. R. Co. 98 U. S. 619 (25:156). A railroad cannot be regarded as mere land; Argued Jan. 11, 12, 13, 1888. Decided April 30, its value depends upon the whole line as a unit. 1888. INERROR to the Circuit Court of the United Union Pac. R. Co. v. Cheyenne, 113 U. S. 517 (28:1099); San Mateo County v. Southern Pac. R. R. Co. 13 Fed. Rep. 725. Railroad property should be assessed as a nia, to review judgments in favor of defend-unit. The facts are fully stated in the opinion. The State has the right not only to tax according to its discretion, but also to classify property for assessment and taxation. Union Pac. R. R. Co. v. Peniston, 85 D. S. 18 Wall. 5 (21:787); Williams v. Albany County, 122 U. S. 163, 164 (30:1089); Kentucky R. R. Tax Cases, 115 U. S. 321 (29:414); State R. R. Tax Cases, 92 U. S. 611 (23-672). This power of classification is not one that is unlimited. Cooley, Const. Lim. 175; Stuart v. Palmer, 74 N. Y. 189; Wilkinson v. Leland, 27 U. S. 2 Pet. 657, 658 (7:553); Terrett v. Taylor, 13 U. S. | 9 Cranch, 43 (3:650); Von Hoffman v. Quincy, 71 U. S. 4 Wall. 550 (18:408); Sinking Fund Cases, 99 U. S. 719 (25:501). The assessment is not an attempt to take the property of the defendant without "due process of law." State R. R. Tax Cases, 92 U. S. 575 (23:663); McMillen v. Anderson, 95 U. S. 37 (24:335); Davidson v. New Orleans, 96 U. S. 97 (24:616); Kentucky R. R. Tax Cases, 115 U. S. 331 (29: 416). There was notice in the State Constitution that this property would be assessed. The Leg. islature made provision for such assessment, and for hearing. Here is not only notice to the Company, but an actual appearance by the Company before the board; this is notice,-"due process of law." Does the Fourteenth Amendment affect this case? Strauder v. West Virginia, 100 U. S. 306 (25: 665); Ex parte Virginia, Id. 344 (25:678); Elk v. Wilkins, 112 U. S. 94 (28:643); Ins. Co. v. New Orleans, Woods, 87; Santa Clara County v. Southern Pac. R. R. Co. 118 U. S. 396 (30:118); Philadelphia Fire Asso. v. New York, 119 U. S. 121 (30:347). Laws which have received judicial sanction as valid laws must perish if the position of the defense is sustained. Commonwealth v. People's Sav. Bank, 5 Allen, 428; Illinois Cent. R. R. Co. v. McLean County, 17 Ill. 291; Monroe County Sav. Bank v. Rochester, 37 N. Y. 366; Vicksburg, S. & P. R. R. Co. v. Dennis, 116 U. S. 665 (29:770); Tennessee v. Whitworth, 117 U. S. 129 (29:830); Ruggles v. Porter v. Rockford, R. 1. & St. L. L. R. Co. 76 Ill. 584, 595, Cincinnati, N. 0. & T. P. R. R. Co. v. Commonwealth, 81 Ky. 492; 1 Desty, Tax. pp. 392, 393; Pacific Hotel Co. v. Lieb, 83 Ill. 606. So long as the State does not violate the Constitution of the United States, this court can afford no relief against State taxation. Kelly v. Pittsburgh, 104 U. S. 79 (26:658); State Ř. R. Tax Cases, 92 U. S. 575 (23:663); Kennard v. Louisiana, Id. 480 (23:478); Davidson v. New Orleans, 96 U. S. 97 (24:616); Kirtland v. Hotchkiss, 100 U. S. 491 (25:558); Missouri v. Lewis, 101 U. S. 22 (25:989); German Nat. Bank v. Kimball, 103 U. S. 732 (26:469). Defendants are not denied the equal protection of the laws. Central Pac. R. R. Co. v. State Equalization Board, 60 Cal. 59; Post v. Kendall County, 105 U. S. 669 (26:1205); Beckman v. Skaggs, 59 Cal. 541; Stanley v. Albany County, 121 U. S. 545, 550 (80:1002, 1003); Union Pac. R. R. Co. v. Peniston, 85 U. S. 18 Wall._0 (21:791): Kentucky R. R. Tax Cases, 115 U. S. 336 (29:418); Delaware R. R. Tax, 85 U. S. 18 Wall. 231 (21: 896); Chicago, B. & Q. R. R. Co. v. Iowa, 94 U. 8. 163 (24:95). Apportionment of taxation is purely a legislative function. Milwaukee & M. R. R. Co. v. Waukesha County, 9 Wis. 431, note; Johnson v. Roberts, 102 Ill. 655; People v. Brooklyn, 4 N. Y. 419; State v. Ogden, 10 La. Ann. 402; New Orleans v. Kaufman, 29 La. Ann. 283; State v. Lathrop, 10 La. Ann. 402; Missouri River Ft. S. & G. R. R. Co. v. Morris, 7 Kan. 210; Kittanning Coal Co. v. Commonwealth, 79 Pa. 104, 105; Vasser v. George, 47 Miss. 713; Woodbridge v. Detroit, 8 Mich. 274; Waring v. Savannah, 60 Ga. 97; Athens v. Long, 54 Ga. 330; Gatlin v. Tarboro, 78 N. C. 119; Burr. Tax. § 77, pp. 147-159. The absence of a provision in the State Constitution for an opportunity for parties to be heard in defense of their rights before the State Board of Equalization is not in violation of the Fourteenth Amendment to the Federal Constitution. Beers v. People, 83 Ill. 488; Hallo v. Helmer, 12 Neb. 93; Dundy v. Richardson County, 8 Neb. 508; Gillett v. Lyon County Treasurer, 30 Kan. 166; McMillen v. Anderson, 95 U. S. 37, 41 (24:335); Cooley, Tax. 238, 246, 169–170; State v. Runyon, 41 N. J. L. 98; Kelly V. Pittsburgh, 104 U. S. 79 (26:658); State Ř. R. Tax Cases, 92 U. S. 575 (28:663); Kennard v. Louisiana, Id. 480 (23:478); Davidson v. New [264] engage therewith, whereby the said bushing | ing been distinctly limited to a bushing having The defendant's plea, that the second reissue was for a different invention from that described or claimed either in the original patent or in the first reissue, was therefore rightly adjudged good by the circuit court, and the decree dismissing the bill is affirmed. The specification and the claim of that reissue, as clearly appears upon its face, both treated the notch in the flange of the bushing as an essential element of the inventior. Of the notch in that reissue it may be said, as this court, in a case decided at October Term, 1877, said of the notch described in the reissue for the wrench, that it was "vital in the invention covered by his patent. The notch is the point of engagement between the bushing and the PEOPLE OF THE STATE OF CALIFOR wrench, when the latter, operating as a lever, gives the former its circular motion, and thus forces it home. Without this arrangement such CENTRAL PACIFIC RAILROAD COM. motion could not be communicated, and the desired result produced. Hence its importance NIA, Piffs. in Err., v. PANY. CIFIC RAILROAD COMPANY. in the scheme of the invention." Schumacher SAME, Piffs. in Err., v. SOUTHERN PA- of the specification and the claim of which were SAME, Pliffs. in Err., v. NORTHERN RAIL- "Our invention relates to bushings for barrels; and consists of a short metallic tube in exterior form in shape of the frustum of a cone, slightly tapering. The outer surface is screw threaded, to adapt it to be screwed forcibly into the bung hole of the barrel, and to be held securely in place by the contact of the surfaces. The larger end of this tube is provided with an annular flange projecting outwardly, and adapted to rest, when the bushing is screwed to its place in the hole of the barrel, snugly upon the outer surface of the stave. The interior surface of the bushing is also made in the form of a frustum of a cone, and tapers uniformly from the exterior or flanged to the inner end of the bushing. This surface is made smooth and unbroken, and extends in such form quite through from one end of the bushing to the other, so that the wooden or compressible plug or bung to which it is adapted may have a ready and unobstructed entrance, and may pass, if necessary, beyond the inner end of the bushing, and have a uniform bearing-surface throughout the entire length of the bushing." "Having thus described our invention, what we claim as new, and desire to secure by letters patent, is: "A metallic bushing for the bung holes of barrels, made with a flange adapted to rest on the outer surface of the stave, and with an exterior threaded and an interior smooth surface, both tapering from the flanged to the interior end; said inner surface being unbroken and unobstructed, and tapering uniformly from one end of the bushing to the other, as and for the purpose set forth. The notch in the flange of the bushing is not mentioned either in the specification or in the claim of this reissue, although it is shown in the accompanying drawings, substantially as it was shown in the drawings of the original patent and of the former reissue. The original patent and the first reissue hav WAY COMPANY. SAME, Plffs. in Err., v. CALIFORNIA PA. .CIFIC RAILROAD COMPANY. SAME, Plffs. in Err., v. CENTRAL PA- SAME, Plffs. in Err., v. CENTRAL PA (See S. C. Reporter's ed. 1-45.) California railroad assessments—U. 8. fran chises not taxable-power of Congress to con struct railroads. *1. By the Constitution of California two modes of assessment for taxation are prescribed; one, by a State Board of Equalization; the other, by county to be assessed in the county, city, etc., in which it boards and local assessors. All property is directed is situated, except that the franchise, roadway, roadbed, rails, and rolling stock of any railroad operated in more than one county are to be assessed by the state board and apportioned to the several counties, etc. By an Act of the Legislature the state board is required to include in their as sessment steamers engaged in transporting passengers and freights across waters which divide a railroad. This Act was held by the Supreme Court of California, in San Francisco v. Central Pac. R. R. Co. steamboats were held to be assessable by the coun63 Cal. 469, to be contrary to the Constitution; and ty board, and not by the state board. This court, following that decision and that of Santa Clar County v. Southern Pac. R. R. Co. 118 U. S. 394 [30: 118], holds that the assessment of the steamers of railroad company by the state board is in violation of the Constitution of California, and void, and, being inseparably blended with the other property assessed, it makes the whole assessment void. 2. The State Board of Equalization of California having included in their assessment all the franchises of a railroad company, amongst which were franchises, conferred by the United States, of constructing a railroad from the Pacific Ocean across the State as well as across the Territories of the United States, and of taking toll thereon.-Held. that the assessment of these franchises was repug *Head notes by Mr. Justice BRADLEY. 127 U.S. [1] |