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of the city for four railroads then having In 1886 and 1887 the assessors of Troy termini in Troy. An act of that year, assessed the Troy Union Railroad Comchap. 255, authorized the city and the four pany for $783,984 instead of the agreed roads to subscribe for the stock of a new $30,000, but it was held that the comcorporation to be formed for that purpose, pany's property above $30,000 was exand the city to issue bonds when secured empt. People ex rel. Troy Union R. Co. by a mortgage of the new road to be built v. Carter, 52 Hun, 458, 5 N. Y. Supp. and by contract of the four subscribing 507, 117 N. Y. 625, 22 N. E. 1128. In roads. In July, 1851, the contemplated 1909, however, the Act of 1853 was recorporation was formed with a stock of pealed. Acts 1909, chap. 201. The as$30,000; it is the relator in this suit. Then sessment complained of in this case was on December 3, 1852, an agreement was made since this repeal. made by the city of Troy, the Troy Union The court of appeals held that the Railroad Company, and the four other concession in the Act of 1853 was sponrailroads, providing for carrying out the taneous and belonged to the class of priviplan, and therein the city covenanted to legia favorabilia, as it is put in Christ join in an application to the legislature Church v. Philadelphia County, 24 [50] of New York that the new road should be How. 300, 16 L. ed. 602, and therefore exempt from taxation upon an amount was subject to repeal. This is a quesexceeding the present amount of its capi- tion upon which we would be slow to tal stock, and, if such law should not be differ with a decision of the New York passed, to refund the amount of the city courts with regard to a New York taxes for any valuation exceeding said corporation. It may be that too much present stock. The above-mentioned mort- stress was laid upon the absence of gage was executed, the four roads gave the a consideration for the exemption city their covenant of indemnity, and (Wisconsin & M. R. Co. v. Powers, [49] thereafter, on June 24, 1853, the 191 U. S. 379, 385-387, 48 L. ed. 229-232, desired act of the legislature was passed. 24 Sup. Ct. Rep. 107); and that a fairly Laws 1853, chap. 462. It provided that strong argument could be made for in"for the purposes of taxation in the city terpreting the grant of 1853 as purporting of Troy, and in the county of Rensselaer, to be coextensive with the contract recited the property of the Troy Union Railroad in that grant, whether correctly recited or Company shall be estimated and assessed not. It may be, if it were material, that (as the common council of said city of the contract of 1858 should be construed Troy, by its contract with said company, as a continuance of that of 1852 as re

agreed that the same should be) formed, notwithstanding the habitually inat the amount of the capital stock of said accurately used word "annulled.” United company, and no more. The above-men- States v. McMullen, 222 U. S. 460, 471, tioned covenant of the city and this pro- 56 L. ed. 269, 273, 32 Sup. Ct. Rep. 128. vision of the statute are the grounds upon But, taking into consideration the general which the relator founds its claim. attitude of the courts toward claims of

After 1853 there was a default in the exemption, adverted to by the court of payment of the interest on the bonds that appeals, the fact that the agreement of had been issued by the city under the 1858 shows that the parties concerned did agreement, and the city began an action not suppose that they had an irrevocable to foreclose the mortgage given by the grant, and especially the fact that the road to secure it. Thereupon, in 1858, a Constitution of New York in force in 1853 new contract was made between the par- provided in article 8, § 1, that all general ties concerned in which they, “for the pur- laws and special acts passed pursuant to pose of reforming the contract (made in 1852), adopt this instead and in place of that section might be altered or repealed, the said contract, which is hereby an

we are not prepared to say that the decinulled.” The city of Troy agreed that if sion below was wrong. We are dealing, the Act of 1853 should be repealed at any of course, only with the contract supposed time it would join in an application to the to be embodied in the Act of 1853. The legislature, as in the former contract, and liability of the city on its covenant to covenanted again that if the desired law refund taxes upon an assessment exceedshould not be passed, it would refund as ing $30,000 was not passed upon below, before. The other arrangements do not and is not before us in this case. need mention here.

Judgment affirmed. 65 L. ed.

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sumptive validity of the grant to him." Henderson's testimony, which [35] we The court fortified its views by the insert in the margin somewhat fully, as decision of the circuit court of appeals it cannot be adequately represented in of the eighth circuit in New York condensation or by paraphrase.?. [36] Scaffolding Co. v. Whitney, 140 C. c. From his testimony, it is certain that A. 138, 224 Fed. 452, citing, however, to his scaffold did not cause him sleepless the contrary, the decision of the circuit its or' laborious days. He was not court of appeals of the third circuit, in experienced in the art of which it is an New York Scaffolding Co. v. Liebel- example. It may be that the conceptions Binney Constr. Co. [254 U. S. 24, ante, of invention cannot be tested by such or 112, 41 Sup. Ct. Rep. 18), the decision by moments of time, and that originaliwe have just affirmed.

ty does not [37] need the aid or delay The court, however, decided that the de- of drudgery; but one is forced to think cree was "erroneous in finding infringe- that where a change is readily made in ment in the manufacture or sale or in any any composite instrumentality, the change use of the Little Wonder machine.” The is not the prompting or product of invendecree of the district court was reversed, tion. Indeed, it is a common experience with directions to enter a decree in ac- in patent cases that mere mechanical facilcordance with the views expressed. ity can alter or change the form in which

The Henderson patent was made the originality and merit expressed thembasis of recovery in New York Scaffold-selves, and assert for it the claim of ining Co. v. Liebel-Binney Constr. Co. No. vention. This case is an example of such 22, just decided, and there we estimated pretension. We may repeat counsels' its inventive quality as tested by the prior question and ask what did Henderson do art, and as representative of that we took that Murray did not do? He made the the patent of William Murray, accepting U-frame which supported the hoisting it as an advance upon the prior art. device of continuous metal instead, as

We need only add to what was there Murray did, of several pieces riveted tosaid that our conclusion is confirmed by Igether, and in the stirrup which it formed

2 After stating the schools and colleges Hotel, and that shortly after he went down he had attended, and that he was admitted to the hotel. to the bar in 1910, he testified as follows: He further testified: 3 Q. Will you state when you first ac

A. On the north side of the building quired any knowledge of the scaffolding busi- there was a scaffold suspended by overhead ness and how it came about?

outriggers, cables led down to a drum, the A. The first time I had any occasion to cable passed over a little pulley wheel on consider scaffolding on buildings was about the top cross member of the scaffold down in February, 1910-February, 1909. I was to a drum, and the drums were in pairs ophaving dinner with Mr. Merrill, then presi. posite at right angles to the building. These dent of the Noel Construction Company, drums and I explained to Mr. Merrill a certain which was held in place, bolted, with two

were supported above a U-frame gas engine I was designing, attempting to angle irons, the bolts passed through the get a patent at that time, and Mr. Merrill, U-frame, and then the planking were laid whom I had known while I was at the along the scaffold on top of the angle irons, academy at Annapolis, put up to me a which was bolted to the U-frames, and the proposition of scaffolding on the city hall, drums were operated by means of the ratchet which the Noel Construction Company was lever, to which the men put a pipe, making then building in Chicago, and explained to

an extension, and pumped it up and down. me the great expense of building up a

13 Q. Just how were the putlogs supscaffold from the ground, and stated that it was much more convenient and cheaper which you have testified ?

ported relative to the U-frame concerning to scaffold by swinging the scaffold from

A. The putlogs were bolted alongside of an overhead outrigger. He said there was such a scaffold in use and being put up by the U-frame.

the U-frame, and the bolts passed through a New York concern, but that the rental

14 Q. Did you see the machines operate! charged by the New York concern was prohibitory of its use on the city hall, and said

A. Yes, the men were laying brick along with my mechanical training I ought to be the scaffold; a couple of laborers hoisted able to devise a means of swinging a scaffold, one end of the scaffold. and instructed me to go ahead and see what

15 Q. So you saw it raised during the I could do.

time you were there?

A. Yes, sir. A. This was in February, 1909.

16 Q. At that time had you done any He further testified that Mr. Merrill work on what later developed into your called his attention to devices that were patent in suit! then in use in Chicago at the Blackstone A. I had not.

V.

ers

he rested the putlogs or beams loosely, , UNITED STATES OF AMERICA, Piff. in making a hinged joint connection be

Err., tween the stirrup and the hoisting machines, with a resulting flexibility. This

JAMES BUTT, alias Wong Sing. consequence and its advantage, if it have (See S. C. Reporter's ed. 38-42.) such, it is admitted he did not discern,

Aliens immigration Chinese laborand naturally. His purpose was evasion.

Exclusion and Immigration To evasion he was prompted. Beyond Acts. what was necessary to that he exerted no

A person bringing Chinese laborers vision or conception. He had had no ex- into the United States, who, because of perience in the art, and what knowledge failure actually to land the aliens in the of the Murray scaffolding he had was ob- Cnited States, did not proceed far enouglı tained by a thirty minutes' observation of to violate the Chinese Exclusion Act of July it in operation. We yield to the assertion 5, 1884, § 11, may be prosecuted under the of counsel that he cannot be deprived of the latter section being broader and more

Immigration Act of February 5, 1917, § 8, an advantage because he did not discern comprehensive in its terms. it, but the same concession must be given [For other cases, see Aliens, VI. b, in Digest to Murray. He was entitled to all of the Sup. Ct. 1908.) benefit that he claimed for his device, or

(No. 275.] that can be given to it by formal changes.

It will be observed that the Circuit Submitted October 18, 1920. Decided NoCourt of Appeals and the District Court

vember 8, 1920. disagreed in their views of the relation [38] of the Little Wonder ma- N ERROR to the District Court of the chine to the Henderson device, the latter

United States for the Northern Disconsidering it

it an infringement, the trict of California to review a judgment former determining otherwise, and to quashing an indictment for bringing that extent reversing the decree of the Chinese laborers into the United States. District Court. Both courts, however, Reversed. concurred in ascribing invention to the

The facts are stated in the opinion. Henderson device. In this both courts erred, and the decree of the District Assistant Attorney General Stewart Court is therefore reversed, and the case and Mr. Harry S. Ridgely submitted the remanded to that court with directions to cause for plaintiff in error. dismiss the bill of complaint on the ground that the Henderson patent is in

No brief was filed for defendant in valid, it exhibiting no invention. So ordered.

Note.-As to who are alien laborers And further :

within the meaning of the contract labor A. I didn't do anything further until laws-see notes to Scharrenberg v. Dolabout the middle of May. Mr. Merrill

lar S. S. Co. 62 L. ed. U. S. 189, and called me up and asked me to come down United States v. Union Bank, 8 A.L.R. to the office. I went down and he asked me 1442. if I had a scaffold ready for him or had any ideas. I told him no, that I had not. He the windlass to the putlog, I found I could said, “I have been depending upon you to utilize pieces of 2 x 10 around the building design something, and I have got to have for putlogs and place them in the l'-frame, something." So he called in Mr. Peterson, and would make the scaffolds easier to put the superintendent, took me

to the into the building and much simpler to dis. city hall and showed me the wall he wanted mantle,--to take off. to scaffold in the court there, and I then

Q. Where did you get your knowledge of went over to Carpenter & Company and in the U-frame being used in this line of spected some winches he had there to see if work? it was practicable to bolt the winches to

A. I saw -frames on the Blackstone wooden putlogs. And owing to the fact Hotel. It was just an ordinary stirrup. that Carpenter & Company wanted more 3 There is a denial of advantage, and it money than Merrill could pay for scaffold. was admitted at the argument that rigidity didn't make a deal with him. Then I went of the putlog and frame was sometimes rehome and made up the design for the scaf. sorted to. Counsel tried to minimize the fold that I subsequently applied for a patent necessity or practice by saying that it was on, and took it down to Brown & Williams, accomplished by a ten-penny mail. Vani attorneys, and asked them if I could get a festly it was the effect and its necessity or patent on it. They thought I could. Mr. advantage which were important, not the Merrill said he would have Parker & Carter' means of their accomplishment, and the investigate if there would be no infringe. necessity or advantage cannot be estimated ment on the winch, and instead of bolting by the size of the nail.

error.

over

[41] Mr. Justice McKenna delivered, courts.should indulge in any such refinethe opinion of the court:

ment as this. In other words, Congress Error to review a judgment of the dis- either intended that persons bringing trict court, quashing an indictment against Chinese laborers into the United States defendant in error, Butt, which charged should be prosecuted under the Immigrahim with feloniously bringing four Chi- tion Act, or that they should not. Such nese aliens into the United States, in vio- was manifestly the view of the circuit lation of the Immigration Act of Febru- court of appeals for the eighth circuit in ary 5, 1917 (chap. 29, 39 Stat. at L. 874, the case already cited." The court con880, Comp. Stat. $$ 4289}a, 4289łdd, sidered that it was its duty to follow that Fed. Stat. Anno. Supp. 1918, pp. 212, decision until the question should be de220.

cided by the circuit court of appeals for The legality of the ruling depends upon the ninth circuit or by this court. The the coexistence of that act with the Chi- motion to quash was sustained. nese Exclusion Act of July 5, 1884 (23 This ruling is attacked and that of the Stat. at L. 117, chap. 220, 2 Fed. Stat. case adduced in its support, by the citaAnno. 2d ed. p. 76).

tion of United States v. Wong You, 223 We may use in exposition of the case U. S. 67, 56 L. ed. 354, 32 Sup. Ct. Rep. the memorandum of the district court 195, and United States v. Woo Jan, 245 (Judge Rudkin). It appears therefrom U. S. 552, 557, 62 L. ed. 466, 467, 38 that an earlier indictment was presented Sup. Ct. Rep. 207. against Butt, charging him in three counts The cases support the contention for with having brought the same four which they are cited, and it follows, thereChinese aliens into the United States. The fore, that the ruling of the District Court first two counts were based on § 8 of the in the case at bar, sustaining the motion Immigration Act of February 5, 1917, to quash the indictment, was error, and and the third count on § 11 of the Chinese it is reversed. Exclusion Act. All of the counts were

So ordered. based on the unlawful landing of four Chinese laborers into the United States. (43) EDWARD B. PRYOR and Edward A motion to quash the first and second F. Kearney, Receivers of the Wabash counts on the grounds of misjoinder, and

Railroad Company, Petitioners, on the further ground that the several acts did not state facts sufficient to con

ALLEGA WILLIAMS. stitute a crime, was granted. The ruling (See S. C. Reporter's ed. 43-46.) was based on a decision of the circuit Master and servant - employers' liabil. court of appeals for the eighth circuit ity assumption of risk. (Stoneberg v. Morgan, 158 C. C. A. 324, 1. No recovery can be had under the 246 Fed. 98).

Note.—On the constitutionality, apUpon the trial of the third count a verdict of not guilty was directed by the plication, and effect of the Federal Emcourt (Judge Farrington), the govern- Lamphere v. Oregon R. & Nav. Co. 47

ployers' Liability Act--see notes to ment having failed to prove that the L.R.A.(N.S.) 38, and Seaboard Air Line Chinese were actually landed in the Unit- R. Co. v. Horton, L.R.A.1915C, 47. ed States. On June 11, 1919, the indictment in of risk-see notes to Pidcock v. Union

Generally, as to servant's assumption controversy was found. As we have said, P. R. Co. 1 L.R.A. 131; Foley v. Pettee it charged Butt with bringing the same Mach. Works, 4 L.R.A. 51; Howard v. Chinese aliens into the United States, and Delaware & H. Canal Co. 6 L.R.A. 75; all of its counts were based on the Im- Hunter v. New York, O. & W. R. Co. migration Act. A motion to quash was 6 L.R.A. 246; Georgia P. R. Co. v. Dooly, made, accompanied by the record in the 12 L.R.A. 342; Kehler v. Schwenk, 13 former case, in the nature of a plea of L.R.A. 374; and Southern P. Co. v. former jeopardy. [42] To this proce- Seley, 38 L. ed. U. S. 391. dure the government consented, but contended that, inasmuch as defendant did and rules of law to actions under the

On the applicability of state statutes not proceed far enough to violate $ Federal Employers' Liability Act--see 11 of the Exclusion Act, he was sub- note to McLain v. Chicago G. W. R. Co. ject to prosecution under § 8 of the 12 A.L.R. 693. Immigration Act, it being broader and On what questions the Federal Su. more comprehensive in its terms. Topreme Court will consider in reviewing this contention the court replied, and the judgments of state courts-see note we quote its language: "In my opin- to Missouri ex rel. Hill v. Dockery, 63 ion Congress did not intend that the L.R.A. 571.

V.

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SO

Federal Employers' Liability Act of April servant assumes extraordinary risks in22, 1908, by an employee who was injured cident to his as the result of defects in a claw bar he caused by the master's negligence which

employment, or risks was using, where such defects were obvious that an ordinarily prudent employee preciated by him. And the defense of

are obvious or fully known to and apwould not have used it. (For other cases, see Master and Servant, il assumption of risk, according to the rule b, in Digest Sup. Ct. 1918 Supp.)

of common law, is available in a case Commerce – conflicting state and Fed under the Federal Employers' Liability eral law employers' liability. 2. The requirement of the Federal Em scribed in § 4 of the act.

Act, except in the circumstances de ployers' Liability Act of April 22, 1908, as

Seaboard Air Line R. Co. v. Horton, to the effect as a defense of the assumption of risk by an employee, prevails over any 233 U. S. 492, 58 L. ed. 1062, L.R.A. state law.

1915C, 1, 34 Sup. Ct. Rep. 635, Ann. (For other cases, see Commerce, I. c, in Digest Cas. 1915B, 475, 8 N. C. C. A. 834; Sup. Ct. 1908.)

Jacobs v. Southern R. Co. 241 U. S. 229, Appeal - reversible error - instruc

60 L. ed. 970, 36 Sup. Ct. Rep. 588; tions.

3. A judgment of the highest court of Chesapeake & O. R. Co. v. DeAtley, 241 a state, which affirmed a judgment of the U. S. 310, 313, 60 L. ed. 1016, 1019, 36 trial court in favor of plaintiff in an action Sup. Ct. Rep. 564; Erie R. Co. v. under the Federal Employers' Liability Act Purucker, 244 U. S. 320, 324, 61 L. ed. of April 22, 1908, in which the trial court 1166, 1167, 37 Sup. Ct. Rep. 629; Boldt refused to instruct the jury that the effect v. Pennsylvania R. Co. 245 U. S. 441, of the assumption of risk by such employee, 445, 62 L. ed. 385, 389, 38 Sup. Ct. Rep. incident to the use of a defective claw bar,

139. and the circumstances under which it was used, was to relieve defendants from liabil. The defense of assumption of risk in ity for the resulting injury, amending such actions under the Federal Employers' instruction by adding that such fact is to Liability Act is a matter of substance, be considered by the jury in determining the and not subject to control by the statamount of plaintiff's recovery, if any, un utes or the local rule of law adopted by der all of the instructions, must be re- the courts of the several states. It is versed by the Federal Supreme Court where the duty of the courts of the several such refusal and modification were assigned as error in the highest state court, and that states to give effect to the defense of court considered and decided that the fact assumption of risk, in actions under such was of no determining importance, and, if act, in accordance with the rule of the it existed, constituted only contributory common law as adopted and enforced by negligence, and could operate only in re- this court. duction of the amount of recovery, not to Seaboard Air Line R. Co. v. Horton, defeat recovery. (For other cases, see Appeal and Error, 5127- supra; Atchison, T. & S. F. R. Co. v. 6141, in Digest Sup. Ct. 1908.)

Harold, 241 U. S. 371, 377, 60 L. ed.

1050, 1054, 36 Sup. Ct. Rep. 665; New [No. 26.)

York C. R. Co. v. Winfield, 244 U. S.

147, 150, 61 L. ed. 1045, 1048, L.R.A. Argued October 8, 1920. Decided November 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. 8, 1920.

Cas. 1917D, 1139, 14 N. C. C. A. 680;

New Orleans & N. E. R. Co. v. Harris, N

Court of 38 Sup. Rep. 535 review a judgment which, reversing a judgment of the Kansas City Court of

Mr. Roy W. Rucker argued the cause

and filed a brief for respondent: Appeals, in that state, affirmed a judg

The record shows that the judgment ment of the Chariton Circuit Court in favor of plaintiff in an action under the was for the right party, and therefore it Federal Employers' Liability Act. Re- will not be disturbed. versed and remanded for further pro- 252 U. S.'18, 64 L. ed. 430, 40 Sup. Ct.

Chicago, R. I. & P. R. Co. v. Ward, ceedings.

See same case below, 272 Mo. 613, 200 Rep. 275.
S. W. 53
The facts are stated in the opinion.

Mr. Justice McKenna delivered the

opinion of the court: Mr. Frederic D. McKenny argued the Action for personal injuries based on cause, and Messrs. James L. Minnis and Employers' Liability Act. Negligence is N. S. Brown filed a brief for petitioners : charged against petitioners as receivers

By the rule of the common law as of the Wabash Railroad Company. adopted and enforced by this court, a Respondent Williams, plaintiff in the

ONCWRITOf Certsonari te the Supreme 347 U..S. 367, 371,583. L. ed. 1167, 1170,

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