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main of sovereignty but these two. act desire such citizenship, may apply to the
They were, and always have been, regarded legally constituted court or committee desig-
as having a semi-independent position when nated by the several tribes for such citizen.
they preserved their tribal relations; not as ship, and such court or committee shall de
staies, not as nations, not as possessed of the termine such application within thirty days
full attributes of sovereignty, but as a from the date thereof."
separate people, with the power of reg. The act of June 7, 1897, declared that the

ulating their internal and social relations, commission should "continue to exercise all [486]and *thus far not brought under the laws of authority heretofore conferred on it by law

the Union or of the state within whose limits to negotiate with the Five Tribes, and any they resided.

The power of the gen- agreement made by it with any one of said eral government over these remnants of a tribes, when ratified, shall operate to susrace once powerful, now weak and dimin. pend any provisions of this act if in conflict ished in numbers, is necessary to their pro- therewith as to said nation: Provided, tection, as well as to the safety of those that the words 'rolls of citizenship,' as used among whom they dwell. It must exist in in the act of June tenth, eighteen hundred that government, because it has never existed and ninety-six, making appropriations for anywhere else, because the theater of its ex- current and contingent expenses of the Inercise is within the geographical limits of dian Department and fulfilling treaty stiputhe United States, because it has never been lations with various Indian tribes for the fig. denied, and because it alone can enforce its cal year ending June thirtieth, eighteen hun. laws on all the tribes.' The latest utter- dred and ninety-seven, shall be construed to ance upon this general subject is in Choctaro mean the last authenticated rolls of each Nation v. United States, 119 U. S. 1, 27 [30: tribe which have been approved by the coun. 306, 315), where the court, after stating that cil of the nation, and the descendants of the United States is a sovereign nation lim- those appearing on such rolls, and such addiited only by its own Constitution, said: 'Ontional names and their descendants as have the other hand, the Choctaw Nation falls been subsequently added, either by the coun. within the description in the terms of our cil of such nation, the duly authorized Constitution, not of an independent state or courts thereof, or the commission under the sovereign nation, but of an Indian tribe. As act of June tenth, eighteen hundred and such, it stands in a peculiar relation to the ninety-six. And all other names appearing United States. It was capable under the upon such rolls shall be open to investigaterms of the Constitution of entering into tion by such commission for a period of six treaty relations with the government of the months after the passage of this act. And United States, although, from the nature of any name appearing on such rolls and not the case, subject to the power and authority confirmed by the act of June tenth, eighteen of the laws of the United States when Con- hundred and ninety-six, as herein construed, gress should choose, as it did determine in may be stricken therefrom by such commisthe act of March 3, 1871, embodied in sec. sion where the party affected shall have ten tion 2079 of the Revised Statutes, to exert days' previous notice that said commission its legislative power.?.

*will investigate and determine the right of[488) Such being the position occupied by these such party to remain upon such roll as a cittribes (and it has often been availed of to izen of such nation: *Provided, also, That their advantage), and the power of Congress any one whose name shall be stricken from in the premises having the plenitude thus in the roll by such commission shall (have) the dicated, we are unable to perceive that the right of appeal, as provided in the act of legislation in question is in contravention of June tenth, eighteen hundred and ninety-six. the Constitution.

“That on and after January first, eighteen By the act of June 10, 1896, the Dawes hundred and ninety-eight, ali acts, ordinanCommission was authorized “to hear and de. ces, and resolutions of the council of either termine the application of all persons who of the aforesaid Five Tribes passed shall be may apply to them for citizenship in said certified immediately upon their passage to nations, and, after such hearing they shall the President of the United States and shall determine the right of such applicant 10 be not take effect, if disapproved by him, or un. so admitted and enrolled,” but it was also til thirty days after their passage: Proprovided :

vided, That this act shall not apply to reso"That in determining all such applica- lutions for adjournment, or any acts, or restions said commission shall raspect all law's olutions, or ordinances in relation to nego of the several nations or tribes, not inconsis. tiations with commissioners heretofore ap

tent with the laws of the United States, and pointed to treat with said tribes." (487]all *treaties with either of said nations or We repeat that in view of the paramount

tribes, and shall give due force and effect to authority of Congress over the Indian tribes, the rolls, usages, and customs of each of and of the duties imposed on the government said nations or tribes: And provided fur. by their condition of dependency, we cannot ther, That the rolls of citizenship of the sev. say that Congress could not empower the eral tribes as now existing are hereby con- Dawes Commission to determine, in the man. firmed, and any person who shall claim to ner provided, who were entitled to citizen. be entitled to be added to said rolls as a citi. ship in each of the tribes and make out cor. zen of either of said tribes, and whose right rect rolls of such citizens, an essential pre thereto has either been denied or not acted liminary to effective action in promotion of upon, or any citizen who may within three | the best interests of the tribes. It may be months from and after the passage of this remarked that the legislation seems to recog.

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ize, especially the act of June 28, 1898, a parents were so admitted ; and they shall inistinction between admission to citizenship vestigate the right of all other persons whose nerely and the distribution of property to be names are found on any other rolls and omit ubsequently made, as if there might be cir- all such as may have been placed thereon by umstances under which the right to a share fraud or without authority of law, enrolling

the latter would not necessarily follow only such as may have legal right thereto, rom the concession of the former. But in and their descendants born since such rolls ny aspect, we are of opinion that the consti- were made, with such intermarried white utionality of these acts in respect of the de persons as may be entited to citizenship un. ermination of citizenship cannot be suc- der Cherokee laws.” And that the commisessfully assailed on the ground of the im- sion should make a roll of Cherokee freedpairment or destruction of vested rights. men, in compliance with a certain decree of The lands and moneys of these tribes are pub- the court of claims; and a roll of all Chocic lands and public moneys, and the asser- taw freedmen entitled to citizenship under tion by any particular applicant that his the treaties and laws of the Choctaw Nation, right therein is so vested as to preclude in and all their descendants born to them since quiry into his status involves a contradiction the date of the treaty; and a roll of Chickain terms.

saw freedmen entitled to any rights or bene The judgments in these cases were ren- fits under the treaty of 1866, and their dedered before the passage *of the act of June scendants; and a roll of all Creek freedmen, 28. 1898, commonly known as the Curtis act, the roll made by J. W. Dunn, under the au. and necessarily the effect of that act was not thority of the United States, prior to March considered. As, however, the provision for 14, 1867, being confirmed, and the commisan appeal to this court was made after the sion being directed to enroll all persons now passage of the act, some observations upon it living whose names are found on said roll, are required, and, indeed, the inference is not and their descendants, with "such other unreasonable that a principal object intend persons of African descent as may have been ed to be secured by an appeal was the testing rightfully admitted by the lawful authori. of the constitutionality of this act, and that ties of the Creek Nation.” may have had controlling weight in inducing The commission was authorized and di. the granting of the right to such appeal. rected to make correct rolls of the citizens by

The act is comprehensive and sweeping in blood of all the tribes other than the Cheroits character, and notwithstanding the ab- kees, "eliminating from the tribal rolls such stract of it in the statement prefixed to this names as may have been placed thereon by opinion, we again call attention to its provi- fraud or without authority of law, enrolling

The act gave jurisdiction to the such only as may have lawful right thereto, United States courts in the Indian territory and their descendants born since such rolls in their respective districts to try cases were made, with such intermarried white against those who claimed to hold lands and persons as may be entitled to Choctaw and tenements as members of a tribe and whose Chickasaw citizenship under the treaties and membership was denied by the tribe, and au- laws of said tribes.” thorized their removal from the same if the It was also provided that "no person shall claim was disallowed; and provided for the be enrolled who has not heretofore removed allotment of lands by the Dawes Commission to and in good faith settled in the nation in among the citizens of any one of the tribes which he claims citizenship.” as shown by the roll of citizenship when ful- The commission was authorized to make ly completed as provided by law, and accord- the rolls descriptive of the persons thereon, ing to a survey also fully completed; and so that they might be thereby identified, and "that if the person to whom an allotment to take a census of each of said tribes, “or *tc[491] shall have been made shall be declared, upon adopt any other means by them deemed necappeal as herein provided for, by any of the essary to enable them to make such rolls;" courts of the United States in or for the and it was declared that “the rolls so made, aforesaid territory, to have been illegally ac- when approved by the Secretary of the Intecorded rights of citizenship, and for that or rior, shall be final, and the persons whose any other reason declared to be not entitled names are found thereon, with their descend. to any allotment, he shall be ousted and ants thereafter born to them, with such per: ejected from said lands."

sons as may intermarry according to tribal The act further directed, as to the Chero- laws, shall alone constitute the several tribes kees, that the commission should "take the which they represent." roll of Cherokee citizens of eighteen hundred The act provided further for the resuband eighty, not including freedmen, as the mission of the two agreements, with certain only roll intended to be confirmed by this specified modifications, that with the Chocand preceding acts of Congress, and to enroll taws and Chickasaws, and that with the all persons now living whose names are found Creeks, for ratification to a popular vote in on said roll, and all descendants born since the respective nations, and that, if ratified, the date of said roll to persons whose names the provisions of these agreements so far as are found thereon; and all persons who have differing from the act should supersede it. been enrolled by the tribal authorities who The Choctaw and Chickasaw agreement was have heretofore made permanent settlement accordingly so submitted for ratification Au

in the Cherokee Nation whose parents, by gust 24, 1898, and was ratified by a large 190) reason of their Cherokee blood, *have been majority, but whether or not the agreement

lawfully admitted to citizenship by the tribal with the Creeks was ratified does not appear. authorities, and who were minors when their The twenty-sixth section provided that, 174 U. S. U. S., BOOK 43.

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a "box," are employed as a support for the Phillips v. Detroit, lil U. S. 604, 60: [28: books. These boxes run at right angles to 532, 533]. If there were any invention in the front of the case, and they are so con- applying them to roller shelves, Hoffman is structed that the hand may be introduced not entitled to the credit of it, since they are between any two series of rollers in order to shown in the so-called Richmond shelf. The more readily grasp the back of the book, construction of the Wolfe and Adams patwithout liability of the fingers being caught ents is also such as to permit the introducby the edge of the shelf.

tion of the hand for grasping the book with. A device somewhat similar to that patent-out coming in contact with the edge of the ed to Harris is shown in a patent issued in shelves. 1886 to A. Lemuel Adams, wherein a shelf Putting the Hoffman patent in its most is provided with a series of parallel short favorable light, it is very little, if anything, rollers, the front rollers being supported up: more than an aggregation of prior wellon spring arms, which are carried forward known devices, each constituent of which ag. so as to permit of the introduction of the hand gregation performs its own appropriate between them, and thus facilitate the with function in the old way. . Where a combina

drawal of the book, without liability of con- tion of old devices produces a new result such [497]tact of the fingers with any portion of *the combination is doubtless patentable, but

shelf. When a book is to be placed in posi- where the combination is not only of old ele. tion, it is first rested upon the spring roll. ments, but of old results, and no new funcers, which by their elasticity assist in forc- tion is evolved from such combination, it ing the book upon the fixed rollers, when it falls within the rulings of this court in is easily passed by such rollers to its proper Hailes v. Van Wormer, 20 Wall. 353, 368 place. The extension of the elastic rollers (22: 241, 248]; Reckendorfer v. Faber, 92 U. in front of the shelf would seem to prevent S. 347, 356 [23: 719, 723] ; Phillips v. City the use of doors in front of the shelves, and of Detroit, 111 U. S. 604 [28: 532); Brinkit is clear they do not support the books erhoff v. Aloe, 146 U. S. 515, 517 [36: 1068); when in place.

Palmer v. Corning, 156 U. S. 342, 345 (39: There was also oral testimony showing 445, 447]; Richards v. Chase Elevator Co. that there were in use in the courthouse in 158 U. S. 299 (39: 991). Hoffman may have Richmond, Indiana, in the year 1873, and succeeded in producing a shelf more conventhereafter, unpatented roller shelves for ient and more salable than any which prebooks, consisting of a wooden shelf, having ceded it, but he has done it principally, if the ordinary hand hole at the front, upon not wholly, by the exercise of mechanical each side of which there were short rollers skill. similar to Hoffman's, though some distance If there be any invention at all in this patfrom the front edge, which enabled the back ent, it is not to be found in the combination of the book to be readily grasped and easily described in the claims, but by a reference to withdrawn upon the rollers. "The evidence the drawing, and in the words "substantial. showed that hundreds of these rollers were ly as described." This would confine the used, and one of them, taken from the court plaintiff to a metallic frame divided longihouse in Richmond, was introduced as an tudinally into three sections, each fitted with exhibit.

short rollers, two of which project above and Comparing these several devices with the forward of the front bar of the frame, which patent in suit, it is manifest that every ele. is bent inward in front of the middle section ment of the combination, described in the to form the "re-entrant bend or recess" for first and second claims, is found in one or the the insertion of the hand. other of such devices. Roller shelves are But in whatever light this device be consid. found in all the patents above described as ered, it is evident that, limiting the patent well as in the Richmond shelf, and if there to the precise construction shown, none of were any invention in substituting metal the defendant's devices can be treated as in. for a wooden frame, it appears to have been fringements, since none of them show a shelf anticipated in the shelf used by the Special- divided into three sections, and none of them, ty Company, known as figure 16, the exist- except possibly one, the manufacture *of(499) ence of which before the Hoffman application which was stopped, indicate a bend in the for a patent is admitted by plaintiff's expert front bar of the frame to form the recess for as well as by the manager of the plaintiff the insertion of the hand. corporation. It was no novelty to place roll. The decree of the court below must be reers at the front edges of the shelves, so as versed, and the case remanded to the court to project above and in front of the shelves, of appeals, with directions to order the bill as this is shown in the Boone, Conant, and to be dismissed. Adams patent, and in the defendant's metallic shelf, used prior to the Hoffman application. The employment of semicircular

ALBERT WADE, Petitioner,
hand holes or recesses, for more readily
grasping the books, is such a familiar device

TRAVIS COUNTY, TEXAS.
in upright partitions for holding books that
scarcely any banking or record office is with-

(See 8. C. Reporter's ed. 499-510.)
out them, and the court may properly take
judicial notice of their use long prior to this Determination of state statute-latest state

patent. Brown v. Piper, 91 U. S. 37 [23: decisions-bonds issued under favorablo (498]200]; Terhune v. *Phillips, 99 U. S. 292 (25: state decisions-validity of county bonde

293) ; King v. Gallun, 109 U.S.99 (29: 870] ; determined by the latest state decisions.

v.

O da

1. In determining what the laws of a state ad valorem tax of five cents to create a sink.

are, which will be regarded as rules of de ing fund for bridge bonds, and to pay the cision, this court will look, not only to its interest on such bonds; that the defendant Constitution and statutes, but at the decisions delivered to the bridge company upon its conof its highest court giving construction to tract for erecting the bridge five bonds on

them. 2. If there be any inconsistency in the opin. December 6, 1888, ten bonds on December 22,

lons of such highest court, this court will 1888, ten bonds on February 12, 1889, and generally follow the latest settled as Fudica- | the remaining twenty-two of such bonds on

tions in preference to the earlier ones. July 3, 1889, such bonds being signed by the 8. County bonds issued in good faith for a val- county judge, countersigned by the county

uable consideration are valid in the hands clerk, and registered by the county treasurof a bona fide holder, although the prior state er; that the several levies in question had decisions are against their validity, if the not been appropriated for any other purpose subsequent state decisions are in favor of by the county, or, at least, a sufficient por. their validity.

tion of them remained unappropriated to pay

the interest and sinking fund upon such [No. 267.]

bonds, and that it was the intention of the

commissioners' court to use these levies with Argued April 26, 1899. Decided May 15, a view of providing an annual fund sufficient 1899.

to pay the interest, and to provide the sink.

ing fund required by law. The petition fur. N WRIT OF CERTIORARI to the United ther averred that plaintiff purchased the Fifth Circuit to review a judgment of that tion in open market, and that he is the legal court affirming the judgment of the Circuit owner and holder of the same; that on JanuCourt of the United States for the Western ary 16, 1896, he presented such coupons to District of Texas sustaining a demurrer and the county treasurer and demanded payment dismissing a suit brought by Albert Wade, thereof, which was refused. plaintiff, against the county of Travis to re- The county demurred to the petition upon cover the amount of certain coupons of bonds six different grounds, the first and material issued by said county to build an iron bridge one of which was that the petition failed to over Colorado river. Judgments of the Cir. allege that "at the time the debt was created cuit Court of Appeals and of the Circuit for which the bonds were issued, upon the Court reversed, and case remanded to said coupons of which this suit is brought, any Circuit Court for further proceedings.

provision was made for the *interest, and at(501 See same case below, 72 Fed. Rep. 985, and least two per cent sinking fund upon such 52 U. S. App. 395, 81 Fed. Rep. 742, 26 C. C. bonds." A. 589.

The circuit court was of opinion that, at

the date of the execution of the contract for Statement by Mr. Justice Brown: erecting the bridge, the commissioners' court This was an action brought in the circuit should have made a distinct and specific procourt for the western district of Texas by vision for the interest upon such bonds and the plaintiff Wade, who is a citizen of the for a sinking fund, and thereupon sustained state of Illinois, against the county of Tra- the demurrer and dismissed the cause. vis, to recover upon certain interest coupons

Fed. Rep. 985. detached from forty-seven bonds issued by The plaintiff appealed to the circuit court the defendant for the purpose of building an of appeals, which affirmed the judgment of iron bridge across the Colorado river. the circuit court. 52 U. S. App. 395. Upon

The petitioner set forth that in July, 1888, plaintiff's petition a writ of certiorari was the defendant, being authorized so to do, en subsequently allowed by this court. tered into a contract with the King Iron Bridge Manufacturing Company of Cleve

Messrs. Joseph Paxton Blair and land, Ohio, for the construction of bridge Frank W. Hackett_for petitioner. for public use over the Colorado river, the

Messrs. Clarence H. Miller and Frans company agreeing to complete the same by Fiset for respondent.

November 15, 1888, in consideration of which (500]the defendant *agreed to pay the sum of $47- *Mr. Justice Brown delivered the opinion(501

000 in six per cent bonds, payable in twenty of the court:
years after date.

This case involves the validity of certain
That prior to the making of such contract, bonds issued by the county of Travis in pay-
to wit, February 23, 1888, the defendant, act. ment to the King Iron Bridge Manufactur-
ing though its commissioners' court, levieding Company for the construction of a bridge
for the year 1888 and subsequent years, until over the Colorado river; and, incidentally,
otherwise ordered, an annual ad valorem tax the weight to be given to alleged conflicting
of twenty cents for general purposes, and an decisions of the supreme court of Texas as to
annual ad valorem tax of fifteen cents for the validity of such bonds.
road and bridge purposes, on each one hun- As bearing upon this question, the follow-
dred dollars' worth of taxable property in such ing sections of article XI. of the Constitution
county; that on February 13, 1889, the com- of Texas, upon the subject of "Municipal
missioners' court of the county levied for the Corporations,” are pertinent:
year 1889 an ad valorem tax of fifteen cents "Sec 2. The construction of jails, court-
on each one hundred dollars' worth of prop- houses, and bridges, and the establishment of
erty for road and bridge purposes and an county poor houses and farms, and the lay.

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72

after the passage nitibes act. inthians whalf tbe | APPEAL ffronha de ser of the Court of App be enforced at law or in equity by the courts firming the decree of the Supreme Court of of the United States in the Indian terri. that District in favor of the Fenton Metaltory;" and the twenty-eighth section, that lic Manufacturing Company, plaintiff, and after July 1, 1898, all tribal courts in the In- sustaining the validity of a patent issued to dian territory should be abolished.

Horace J. Hoffman for improvements in The agreement with the Choctaw and storage cases for books and allowing damChickasaw tribes contained a provision con- ages in a suit in equity brought by said comtinuing the tribal government, as modified, pany against the Office Specialty Manufacfor the period of eight years from March 4, turing Co. Reversed, and case remanded, 1898; but provided that it should “not be with directions to dismiss the suit. construed to be in any respect an abdication See same case below, 12 App. D. C. 201. by Congress of power at any time to make See also Fenton Metallic Mfg. Co. v. Chase, needful rules and regulations respecting said | 73 Fed. Rep. 831, 84 Fed. Rep. 893. tribes."

For reasons already given we regard this Statement by Mr. Justice Brown: act in general as not obnoxious to constitu- This was a bill in equity filed in the sutional objection, but in so holding we do not preme court of the District of Columbia by intend to intimate any opinion as to the ef- the Fenton Metallic Manufacturing Comfect that changes made thereby, or by the pany against the appellant to recover for the agreements referred to, may have, if any, on infringement of letters patent number 450,the status of the several applicants, who are 124, issued April 7, 1891, to Horace J. Hoffparties to these appeals.

man for improvements in storage cases for
The elaborate opinions of the United books.
States court in the Indian territory by In the specification the patentee declares
Springer, J., Clayton, J., and Townsend, J., that "the object of my invention is to facili-

contained in these records, some of which are tate the handling and prevent the abrasion (492]to be found *in the report of the Commission and injury of heavy books, etc. It consists.

er of Indian Affairs for 1898, page 479, con- essentially, *of the peculiar arrangement of [493] sider the subject in all its aspects, and set the guiding and supporting rollers, and of forth the various treaties, tribal constitu- the peculiarities in the construction of the tions and laws, and the action of the many case and shelves hereinafter specifically set tribal courts, commissions, and councils forth.”. which assumed to deal with it, but we have The following drawing of one of the shelves not been called on to go into these matters, exhibits the peculiar features of the invenas our conclusion is that we are confined to tion. The drawing explains itself so perthe question of constitutionality merely. fectly that no excerpt from the specification

As we hold the entire legislation constitu- is necessary to an understanding of the tional, the result is that all the judgments claims. must be affirmed.

Mr. Justice White and Mr. Justice McKenna dissented as to the extent of the jurisdiction of this court only.

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can

(See S. C. Reporter's ed. 492-499.) Judicial notice of use of a device-Hoffman The two claims alleged to have been inpatent voidnot infringed.

fringed are as follows: 1. A semicircular hand hole or recess, for "1. In a storage case for books, etc., the

grasping the books, in upright partitions for combination of a supporting rack or shelf holding books, is so old a device that the composed of metallic strips and having a recourt take judicial notice of its use, entrant bend or recess in its front edge and long prior to the Hoffman patent of April 7, rollers journaled in said rack and projecting 1891, for improvement in storage cases for above and in front of the same on each side

books. 2. The Hoffman patent is only an aggregation of said bend or recess, substantially as de

scribed.
of old, well-known devices, each of which
performs its own function in the old way, and

"2. In a book shelf, the combination of a
such patent is void.

supporting frame, a series of horizontal roii. 8. Limiting the Hoffman patent to the claims ers, the front roller in two separated sec

as described, It is not infringed by any of de- tions, the intermediate part of the frame
fendapt's devices.

being carried back to permit the admission
[No. 253.]

of the hand between said roller sections, sub

stantially as described.” Argued April 20, 1899. Decided May 15, The defendant, the Office Specialty Manu1899.

facturing Company, the assignee,

was

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