driving shaft and the spur gear pinion, secured thereon, are put into rotation, when the hinged cover of the machine is brought down it has the effect of causing the spur gear wheel to go into mesh with the spur gear pinion and to set the dolly shaft and its head into reciprocating motion, thus scrubbing the clothes in the tub. When the cover of the washer is swung up, the gear of the dolly is automatically thrown out of gear with the pinion, the main driving shaft still continuously rotating. The operating handle is shifted so as to cause the clutch sleeve to engage with the hub of the bevel pinion, thereby causing the bevel pinion secured to the end of the main drive shaft, to drive the shaft (24) and through the latter the sprocket wheel (36) chain (37), the sprocket wheel (38) and the shaft of the lower wringer roll, causing the wringer rolls to rotate so that a garment placed between them will be carried outwardly. When the first batch of clothes has been washed, and passed through the wringer, a second batch of clothes is inserted in the soapy water in the washer, and the cover of the washer again swung down, thereby, in the manner described, putting the dolly into action again. While the second batch of clothes is being washed, the operator shifts the handle which controls the wringing mechanism, so as to reverse the motion of the wringer rolls, so that the garments in the rinse water tub may be passed back through the rolls of the wringer, and cast into a hamper. The second action of the wringer rolls takes place simultaneously with the washing of the second batch of clothes. The net result, it is contended, of the Phillips patent is that the washing and wringing are carried on simultaneously and the operations of the wringer rolls are controlled by the handle described. The claims alleged to be infringed are numbers 5 to 8 inclusive. Number 6 was selected by the petitioner as typical in character, and is as follows: "6. A gearing device of the class described, comprising a support, a power shaft mounted on the support, means for imparting a continuous rotary motion to the power shaft, an upright shaft 45 mounted in the support, a driving device for the upright shaft operatively connected with the power shaft and capable of impart ing an alternating rotary motion to the upright shaft, a horizontal shaft 39, a driving mechanism for the said shaft 39 connected with the power shaft and capable of imparting a rotary motion to the shaft 39, and a controlling means applied to the driving device for the shaft 39, for reversing the movement thereof and also for operatively disconnecting the shaft 39 from the driving shaft. Confessedly all the elements of the Phillips patent are old. The merits of the combination, which it is contended, involve invention and validate the patent, are that this gearing device, applied and operated as specified, enables the washing of a part of the clothes to be performed at the same time that the wringing process is being applied to other clothes. Thus, it is said, saving time in doing the washing, and, furthermore, by the operation of the control handle the rolls may be reversed or instantly stopped as the needs, convenience and safety of the operator may require. These things, the simultaneous washing and wringing, with the operation of the control handle, for the purposes stated, embrace the advances alleged to have been accomplished upon the prior art. In this view it is unnecessary to particularize the prior patents disclosed in the art. The question is, does this bringing together of old elements accomplishing the purposes stated amount to that combination which is invention within the meaning of the patent law; or does the gearing device, thus applied and used, show only an aggregation of old elements performing well-known functions, producing no novel and useful result entitling the aggregation to the protection of a patent? [1] It is not always easy to decide this question, as the difference of opinion in the Circuit Courts of Appeals in this case illustrates. Generally speaking, a combination of old elements in order to be patentable must produce by their joint action a novel and useful result, or an old result in a more advantageous way. To arrive at the distinctions between combinations and aggregations definite reference must be had to the decisions of this court. The subject was fully discussed in Palmer v. Corning, 156 U. S. 342, 15 Sup. Ct. 381, 39 L. Ed. 445, wherein the previous decisions were reviewed. The rule stated in Hailes v. Van Wor mer, 20 Wall. 353, 368, 22 L. Ed. 241, was quoted with approval, wherein the court said: "It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one by bringing together several old devices without producing a new and useful result, the joint product of the elements of the combination and something more than an aggregate of old results. can acquire a right to prevent others from using the same devices, either singly or in other combinations, or, even if a new and useful result is obtained, can prevent others from using some of the devices, omitting others, in combination." Hailes v. Van Wormer, 20 Wall. 353, 368, 22 L. Ed. 241. In Richards v. Chase Elevator Co., 158 U. S. 299, 302, 15 Sup. Ct. 831, 833 [39 L. Ed. 991], the rule was stated as follows: "Unless the combination accomplishes some new result, the mere multiplicity of elements does not make it patentable. So long as each 434 element performs some old and well-known func-[ We agree with the conclusion reached by tion, the result is not a patentable combination, the court below. but an aggregation of elements." In Specialty Manufacturing Company v. Fenton Metallic Manufacturing Co., 174 U. S. 492, 498, 19 Sup. Ct. 641, 643 [43 L. Ed. 1058], the rule was again tersely stated: "Where a combination of old devices produces a new result such combination is doubtless patentable, but where the combination is not only of old elements, but of old results, and no new function is evolved from such combination, it falls within the ruling of this court in Hailes v. Van Wormer, 20 Wall. 353, 368 [22 L. Ed. 241]; Reckendorfer v. Faber, 92 U. S. 347, 356 [23 L. Ed. 719]; Phillips v. Detroit, 111 U. S. 604 [4 Sup. Ct. 580, 28 L. Ed. 532]; Brinkerhoff v. Aloe, 146 U. S. 515, 517 [13 Sup. Ct. 221, 36 L. Ed. 1068]; Palmer v. Corning, 156 U. S. 342, 345 [15 Sup. Ct. 381, 39 L. Ed. 445]; Richards v. Chase Elevator Co., 158 U. S. 299 [15 Sup. Ct. 831, 39 L. Ed. 991]." [2, 3] Applying the rule thus authoritatively settled by this court, we think no invention is shown in assembling these old ele ments for the purposes declared. No new function is "evolved from this combination"; the new result, so far as one is achieved, is only that which arises from the well-known operation of each one of the elements. In the gearing specified every element is old. The operations of the wringer and the washing machine, although simultaneous, are independent one of the other. The control of the operation of the wringer is by an old and well-known method. From the cooperation of the elements, here brought together, no new result, involving the exercise of the creative faculty which is invention is achieved. Phillips may have produced a more convenient and economical mechanism than others who preceded him, but superiority does not make an aggregation patentable. Specialty Manufacturing Co. v. Fenton Metallic Manufacturing Co., supra. The assemblage of the old elements, and their operation in the manner indicated may save time, and the mechanism may meet with a readier sale than other similar devices, but these things may result from mechanical skill and commercial enterprise, and do not necessarily involve invention. To borrow an illustration made at the argument, we think the Phillips aggregation of elements may be likened to the operation of a number of different machines in a factory by power applied from the same line shaft, each operation contributing its separate part to the production of a given result. So in this instance we think the combination accomplished by Phillips fails to show that exercise of invention, producing a novel and useful result from the co-operating action of the elements, which is essential to distinguish patentable combination from an aggre gation of old elements so placed by mechanical skill as to do work more rapidly and economically. Affirmed. Mr. Justice MCKENNA dissents. (247 U. S. 477) NORTHERN PAC. RY. CO. v. SOLUM. SAME V. MONARCH ELEVATOR CO. SAME v. DULUTH ELEVATOR CO. (Argued March 19, 1918. Decided June 10, 1918.) Nos. 205, 206, 526. 1. COURTS 396(4)-ERROR TO STATE COURT -PRESENTATION OF OBJECTIONS. Objections that, in advance of a determination by the Interstate Commerce Commission as to whether the routing was reasonable, the state courts assumed jurisdiction of an action to recover an amount equal to that by which the route between intrastate points exceeded the infreight for shipments carried on an interstate trastate rate, are available in the federal Supreme Court, though first urged in the state Supreme Court, where they were considered and overruled. 2. COURTS 391(3)—Error TO STATE COURT -JURISDICTION-SCOPE OF WRIT. Prior to Act Sept. 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. 1916, § 1214), amending Judicial Code (Act March 3, 1911, c. 231) § 237, 36 Stat. 1156, a judgment of the state court, allowing recovery of the amount by which freight for a shipment carried over an interstate route between intrastate points exceedof error, a federal question being raised by ed the intrastate rate, may be reviewed on writ assignments of error that the state court erred in holding the cause of action was not affected by the federal statutes regulating interstate 379), and that the state court erred in assumcommerce (Act Feb. 4, 1887, c. 104, 24 Stat. ing jurisdiction in advance of a determination by the Interstate Commerce Commission as to the act of 1916 went into effect, such a judgwhether the routing was reasonable, but after ment could not be reviewed on writ of error, as the question of the validity of a statute or treaty, or the validity of any authority exercised under the state, was not drawn in question. 3. COURTS 380-ERROR TO STATE COURTWANT OF JURISDICTION-FAILURE TO RAISE QUESTION. Where a writ of error was not available under Judicial Code, § 237, as amended by Act Sept. 6, 1916, to review a judgment of the state court, it must be dismissed, though the defendant in error does not raise the jurisdictional question. 4. CARRIERS 79-CARRIAGE OF GOODS-DUTY OF CARRIER. Where a railroad company operates two lines between the same point, and the freight rate over one is less than the rate over the other, it is ordinarily the duty of the carrier to ship by the cheaper route; but the duty is not absolute, the carrier being bound to consider, not only the shipper's interest, but its own and that of the public, and if, all things considered, it would be unreasonable to ship by the cheaper route, the carrier need not do so. 5. COMMERCE 89 INTERSTATE COMMERCE COMMISSION-AUTHORITY-JURISDICTION COURTS. OF tice of routing intrastate shipments over its inWhere the question whether a carrier's practerstate line, instead of its intrastate line, for which a lower rate had been prescribed, was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes reasonable, was an administrative one of per- The northerly line, about 20.9 miles in length, haps considerable complexity, the state court lies wholly within Minnesota; the southerly should not, in advance of the Interstate Com-line, 27.5 miles in length, extends for 11.7 merce Commission's determination of the question, assume jurisdiction of actions to recover the amount by which the freight for shipments carried over the interstate line exceeded the in trastate rate. miles through Wisconsin. The southerly is the original Northern Pacific line which was built in 1885. It has relatively light grades. The northerly line was built by the St. Paul & Duluth Railroad Company and came un 6. COMMERCE 85- INTERSTATE COMMERCE COMMISSION-AUTHORITY. The authority of the Interstate Commerce der the management of the Northern Pacific Commission to make a preliminary determination of administrative questions is not limited to those cases where the question involved is whether a particular rate is reasonable, or a particular practice is discriminatory, but applies to any practice of a carrier which gives rise to the application of a rate, such as the practice of routing intrastate shipments over the carrier's interstate line. 7. COMMERCE 89 INTERSTATE COMMERCE COMMISSION-AUTHORITY. The rule that the courts cannot be resorted to until administrative questions have been determined by the Interstate Commerce Commission, applies, though the question, which was one of routing shipments, involved an intrastate, as well as an interstate, route. in 1900. It has a heavy upgrade from Duluth to Carlton. Since 1900 both lines have, been operated continuously by the Northern Pacific. Because of these grades, the northerly route has been used almost exclusively for such Duluth shipments as are in-bound and the southerly route has been used for such as are out-bound. Until June, 1907, the rates were the same over the two routes They were duly filed with the Minnesota Railroad and Warehouse Commission and with the Interstate Commerce Commission. for intrastate carriage of coal, maximum In 1907 the Legislature of Minnesota fixed rates which were lower than the published In Error to the Supreme Court of Minne rates theretofore charged. The rates so fixsota. Actions by M. J. Solum by the Monarch Elevator Company, and by the Duluth Elevator Company against the Northern Pacific Railway Company. Judgments for the several | plaintiffs were in each instance affirmed by the Supreme Court of Minnesota (133 Minn. 93, 461, 157 N. W. 996, 998; 136 Minn. 468, 162 N. W. 1087), and defendant brings error in each case. Judgments in the two actions first mentioned reversed, and writ of error in the third dismissed. Messrs. Charles Donnelly and C. W. Bunn, both of St. Paul, Minn., for plaintiff in error. Messrs. Henry C. Flannery, of Minneapolis, Minn., and Lyndon A. Smith, of St. Paul, Minn., for defendant in error Solum. Mr. Ernest E. Watson, of St. Paul, Minn., for other defendants in error. * Mr. Justice BRANDEIS delivered the opinion of the Court. These three cases were heard together. In each of them the plaintiff below sought to recover from the Northern Pacific Railway Company, in a state district court of Minnesota, an amount equal to that by which the freight collected for coal carried on an interstate route from Duluth to some other city in the state, exceeded the rate prescribed by the Minnesota law for carriage between those points on another route, wholly within the state. In each case judgment was entered in the trial court for the plaintiff for such amount; and the judgments were affirmed by the Supreme Court of Minnesota. Each case comes here on writ of error. Carlton is situated on the Northern Pacific Railway, west of Duluth. Between these Minnesota cities that company operates two lines of railroad, each mainly single track. ed were to take effect June 1, 1907; but before that date their enforcement was enjoined by the proceedings which were reviewed in the Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18. This injunction remained in effect until July, 1913, when it was dissolved pursuant to that decision. Until then the Northern Pacific continued to charge the published rates (and therefore the same rates) on all shipments of coal from Duluth to Minnesota points, whether moving via the interstate route or the intrastate route. After dissolution of the injunction, the company refunded on the few shipments which had moved over the intrastate route, the amount by which the charges actually collected exceeded the charges which would have been collected had the rates fixed by the Legislature been observed. It refused, however, to make refunds on shipments made over the interstate route, on the ground that the state statute did not affect them. Among such shipments were those involved in these cases, from Duluth by the interstate route to three Minnesota points, Hitterdal, Battle Lake, and Hawley, cities on the Northern Pacific lying west of Carlton. The shipment in each case was delivered to the Railway without any instruction as to how it should be routed; but the plaintiffs contended that, in the absence of instructions, it was the duty of the carrier to select that route which was for the interest of the shipper, namely the intrastate route, because it would prove to be the cheaper, if the rates prescribed by the state were upheld. The several shippers claimed that they were entitled to the same refunds which would have been made if the coal had been carried on the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes intrastate route; and the suits were brought, federal question is involved; and the cases to recover these amounts. The railway answered, in the first two cases, that, at the time of the shipments, the rates published were (because of the injunction in effect) identical on the two routes; that "in the ordinary and proper and economical operation of its property, it was nec essary to move, and this defendant in general did and does now, move all out-bound shipments from Duluth via the interstate line and all in-bound shipments into Duluth via the intrastate line, and that to have carried the shipments referred to in the complaint to their destination via said intrastate line instead of via the interstate line, over which they were actually carried, would have entailed great additional expense upon this defendant," and that these rates were just and reasonable for the service performed and were collected pursuant to the tariffs published and filed with the Interstate Commerce Commission. In the third case the answer alleged, in addition, that on December 24, 1915, and prior to the commencement of that action, the Interstate Commerce Commission had, in Holmes & Hallowell Company v. Great Northern Railway Company, 37 Interst. Com. Com'n, 627, decided that the practice of defendant in routing its bound shipments from Duluth over its interstate line was a proper and reasonable prac tice and had denied the application for reparation on shipments of coal made over that route. * are properly here under section 237 of the Judicial Code. In No. 526 the judgment was entered after the Act of September 6, 1916, c. 448 (39 Stat. 726), took effect. In that case there was not drawn in question the validity of a statute or treaty nor the validity of any authority exercised under the state. Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162, 38 Sup. Ct. 58, 62 L. Ed. -; Ireland v. Woods, 246 U. S. 323, 38 Sup. Ct. 319, 62 L. Ed. -; Stadelman v. Miner, 246 U. S. 544, 38 Sup. Ct. 359, 62 L. Ed. —. The writ of error in No. 526 must therefore be dismissed, although the defendant in error has not objected to the jurisdiction of this court. [4-6] We proceed to consider Nos. 205 and 206. In those cases the Supreme Court of Minnesota declared that the carrier's duty was governed by the common law and it stated the applicable principle as follows (133; Minn. 96, 157 N. W. 997): "Where a railroad company operates two* lines of railroad between the same points, and the freight rate over one line is less than such rate over the other line, if other conditions are reasonably equal, it is the duty of the company to transport shipments between those points over the line which will give the shipper the benefit of the cheaper rate. To justify transwest-porting such shipments over the other line, and thereby compel the shipper to pay the higher chosen by the shipper, or that the circumstances rate, the company must show that such line was or exigencies were such that a proper regard for the interests of the shipper precluded the use of the cheaper line." [1-3] The judgments entered were upon deIn the absence of shipping instructions it murrers to the answers. That in No. 205 is ordinarily the duty of the carrier to ship was entered May 28, 1916; that in No. 206 by the cheaper route. But the duty is not The obligation of the caron May 23, 1916; that in No. 526 on May an absolute one. 2, 1917. 132 Minn. 93, 157 N. W. 996; 133 rier is to deal justly with the shipper, not to consider only his interests and to disregard Minn. 461, 157 N. W. 998; 136 Minn. 468, 162 wholly its own and those of the general pubN. W. 1087. In each case it is assigned as lic. If, all things considered, it would be unerror that the state court held that the cause reasonable to ship by the cheaper route, the of action therein is not affected by the fed-carrier is not compelled to do so. The duty eral statute regulating interstate commerce, and also that the state court assumed jurisdiction in advance of a determination by the Interstate Commerce Commission as to whether the practice of the Northern Pacific Railway, in sending via its interstate route all shipments of the character involved in these cases, was reasonable. In the third case the additional error is assigned that the court held that the intrastate rate should be applied, although the Interstate Commerce Commission had found that the practice of routing out-bound shipments from Duluth via the interstate route was proper and reasonable. The objection that the court lacked jurisdiction to entertain the proceeding was not made in the answers in the trial court; but it was insisted upon before the Supreme Court of Minnesota, was considered and overruled by that court (133 Minn. 93, 97, 157 N. W. 996), and is available here. In numbers 205 and 206 judgment was entered before the Act of September 6, 1916. is upon the carrier to select the cheaper route only "if other conditions are reasonably equal." Resort to the more expensive route may be justified. And the justification may rest either upon the peculiar circumstances of a particular case or upon a general practice. In the cases before us the justification is rested upon a general practice. The answers allege that, because of the grades of the two lines, all outbound shipments were and are in general moved over the southerly route on account of the very great expense which another arrangement would entail. It may well be, under such circumstances, that carriage over the interstate route would be justified, even if it appeared that it was feasible to haul freight out of Duluth over the intrastate line. Whether the practice of the carrier of shipping over the interstate route was reasonable, when a lower intrastate route was open to it, presents an administrative question, one of perhaps conAsiderable complexity. terstate. Compare the Minnesota Rates Cas- In Nos. 205 and 206 judgments reversed. (247 U. S. 490) CHICAGO, M. & ST. P. RY. CO. et al. v. MINNEAPOLIS CIVIC & COMMERCE ASS'N. 1918.) No. 283. 201 TERMINAL CHARGES 1. CARRIERS The railway contends that, since the administrative question upon which its liability depends involves the reasonableness of a practice in interstate commerce and the traffic actually moved in interstate commerce, the court had no jurisdiction to adjudicate the controversy until that administrative question had been determined by the Interstate Commerce Commission. The shipper, on the other hand, urges that the rule which requires such preliminary determination of administrative questions by the Commission applies only to those cases where the question involved is whether a particular rate is unreasonable or whether a particular prac- (Argued May 1 and 2, 1918. Decided June 10, tice is discriminatory. But the rule is not so limited. It applies, likewise, to any practice of the carrier which gives rise to the application of a rate. Texas & Pacific Ry. Co. v. American Tie & Timber Co., Ltd., 234 U. S. 138, 147, 34 Suv. Ct. 885, 58 L. Ed. 1255; Pennsylvania Railroad Co. v. Puritan Coal Co., 237 U. S. 121, 131, 35 Sup. Ct. 484, 59 L. Ed. 867; Pennsylvania Railroad Co. v. Clark Brothers Coal Mining Co., 238 U. S. 456, 469, 35 Sup. Ct. 896, 59 L. Ed. 1406. The Interstate Commerce Commission has frequently entertained proceedings for refunds for misrouting under such circumstances.1 Indeed, long before these suits were filed, proceedings had been begun before the Interstate Commerce Commission against this and other railroad companies to secure the refunds of amounts paid for shipment over the interstate routes between Minnesota points in excess of that which would have been payable, if shipment had been made over the intrastate routes. Holmes & Hallowell Co. v. Great Northern Ry. Co., 37 Interst. Com. Com'n, 627, * 630, 645, 649. And before the judgments were entered by the Supreme Court of Minnesota in these cases the Interstate Commerce Commission had determined that, under the circumstances, "the carrier was not required by law to change its methods of operation and abandon the use of its more favorable interstate line," and had refused to grant refunds in respect to the shipment of other commodities, under circumstances precisely like those presented here. [7] The fact that the administrative question presented involves an intrastate as well as interstate route does not prevent the application of the rule, that the courts may not be resorted to until the administrative question has been determined by the Commission. It is sufficient that one of the routes is in Where trunk lines companies owned all of the stock and controlled a railway company whose entire mileage was part of their terminal facilities, they cannot, on the theory of its separate corporate entity, impose on shippers and industries, reached by such company's line, charges in excess of their ordinary rates to the terminal point, for, despite the rule that ownership of capital stock in one corporation by another does not create an identity of corporate interest, or render the stockholding company the owner of the property of the other, the courts, where stock ownership is resorted to pany, so that it may be used as a mere instrufor the purpose of controlling a subsidiary commentality of the owning company or companies, will disregard the separate corporate identity of the subsidiary company. In Error to the Supreme Court of the State of Minnesota. Proceeding by the Minneapolis Civic & Commerce Association against the Chicago, Milwaukee & St Paul Railway Company and others, which was begun before the Minnesota Railroad and Warehouse Commission. An order of the Commission, which was affirmed by the district court, having been affirmed by the Supreme Court of the state of Minnesota (134 Minn. 169, 158 N. W. 817), the Railway Companies bring error. Affirmed. Messrs. James B. Sheean, of St. Paul, Minn., for defendant in error. * Mr. Justice CLARKE delivered the opin-* 1 Willman & Company v. St. Louis, Iron Moun-ion of the Court. We shall adopt the designation of the parties which is used in the record: The Chicago, Milwaukee & St. Paul Railway Company as the "Milwaukee Company"; the Chicago, St. Paul, Minneapolis & Omaha Railway Company as the "Omaha Company"; the Minneapolis Eastern Railway Company as the "East For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |