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through mesne assignments of Jewell and tions. It may be remarked in passing that
Yawman, whose application for a patent, none of the decisions in the Patent Office in
filed November 6, 1888, was put in interfer the interference proceedings dealt with the
ence in the Patent Office with the applica question of prior devices.
tion of Hoffman, filed February 12, 1887, and The introduction of rollers in book shelves

the interference proceedings on behalf of is undoubtedly a convenient and valuable 1494]Jewell and Yawman, were conducted by the device for preventing the abrasion of large

parties who subsequently formed the Office and heavy books which are obliged to be laid Specialty Manufacturing Company. The flat upon the shelves, especially when they Examiner of Interferences, the Board of Ex: are subjected to frequent handling; but the aminers-in-Chief, and the Commissioner of employment of roller shelves at the time Patents successively decided in favor of Hoff. Hoffman made his application for a patent man, to whose assignees the letters patent (February 12, 1887) was by no means a were subsequently, issued. During the pen novelty. Indeed, plaintiff's own expert tesdency of the interference, the Hoffman appli- tifies that "it was common to use what were cation was divided, as permitted by the rules called roller shelves, the same consisting of of the Patent Office, to secure a patent for frames or supports and longitudinal parallel certain features not involved in the inter- rollers, which extended the entire length of ference.

the shelf and served to reduce friction in Upon a hearing on pleadings and proofs putting books upon and withdrawing them a decree was entered adjudging the patent from the shelf. One form of such shelves to be valid, and the first and second claims is shown in complainant's exhibit, Office thereof to have been infringed by the defend. Specialty Manufacturing Company's cataant; and the case was sent to the auditor to logue, Figure 16.” This exhibit shows a determine and report the profits and dam- shelf frame made of bent metal, firmly riveted ages resulting from the infringement. together, containing three continuous rollers,

After certain proceedings, taken with re- each of the full length of the shelf, made of
spect to several infringing devices, not nec- steel in tubular form. Continuing, the wit-
essary to be here set forth, a final decree ness said:
was entered in favor of the plaintiff, which, “The use of such shelves was, and is, how-
so far as respects the validity of the patent, ever, limited because of certain defects; for
was affirmed by the court of appeals, with instance, one of the principal defects is the
an allowance for damages, which had been liability of the person placing the book upon
rejected by the supreme court. 12 App. D. the shelf to have the fingers pinched between
C. 20). Whereupon the defendant appealed the book and the front roller in placing the
to this court.

book on the shelf. With light, small books

this, of course, was not a matter of special Messrs. Melville Church and Joseph B. importance, *and the shelves can be used with[496) Church for appellant.

such books, but the class of books for which Mr. Charles Elwood Foster for appel. such shelves are especially adapted is heavy lee.

books, such as are used in keeping govern

ment records, weighing, in many instances, (494) *Mr. Justice Brown delivered the opinion from ten to twenty-six or even thirty pounds, of the court:

and quite large, and with such books the liaWe consider the question of the validity bility to injure the fingers in putting them of this patent as the decisive one in this on and taking them from the shelf is very

The patent was adjudged to be valid great." by the supreme court of the District of Co- So long before Hoffman's application as lumbia, as well as by the court of appeals. the year 1870, Samuel H. Harris had obIt had been held to be invalid by Judge La- tained a patent, No. 107,042, for a shelf of combe, sitting in the circuit court for the three parallel wooden rollers covered with southern district of New York, upon a mo- sheet metal, the specification of which seems tion for a preliminary injunction (Fenton to assume that wooden rollers had thereto Metallic Manufacturing Co. v. Chase, 73 Fed. fore been used in iron cases for books. Rep. 831), and by Judge Wheeler, upon a A patent issued in 1876 to John L. Boone, final hearing of the same case (84 Fed. Rep. No. 182,157, describes his invention as con893).

sisting "in attaching rollers to the front [495] *The elements of Hoffman's combination edges of book shelves so that when a book is

as described in the first claim alleged to be withdrawn from or placed upon the shelf it infringed, are (1) a supporting rack or shelf will move over the roller instead of over the composed of metallic strips; (2) a re-entrant edge of the shelf.” This is to obviate the bend or recess in its front edge for the in- danger of the book being abraded by the sertion of the hand; and (3) rollers jour. sharp corners of the shelf over which it is naled in the rack and projecting above and dragged, especially if the shelf is higher than in front of the same on each side of the re- the level of the person's head who handles

In the second claim the combination it. is described as (1) a supporting frame (ap- A patent issued in 1885 to Walter H. Coparently including one of wood as well as nant shows a similar arrangement of front of metal; (2) a series of horizontal rollers, rollers to protect the books. the front rollers being in two separated sec- In a patent to Marion T. Wolfe of Octo tions; (3) the intermediate part of the ber 7, 1879, No. 220,265, there is shown a frame being carried back to permit the ad- book case in which three series of short rollmission of the hand between said roller sec-'ers, each inserted in what the patentee calls

case.

cess.

a "box,” are employed as a support for the Phillips v. Detroit, lil U. S. 604, 60: 128: 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 withA 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]; Brink. it 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 "substantialshowed 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 longi. house 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 considfound 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 infor 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 a 3 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, Pctitioner, 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 favorable (498)200); Terhune v. *Phillips, 99 U. S. 292 (25: state decisions-validity of county bonds

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

UNTY,

them.

Oda

3

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 con

of its bighest court giving construction to tract for erecting the bridge five bonds on 2. If there be any inconsistency in the opin. December 6, 1888, ten bonds on December 22,

ions of such highest court, this court will 1888, ten bonds on February 12, 1889, and generally follow the latest settled aa udica- 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 treasur. of 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 Janu. Court 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 Franz company agreeing to complete the same by Fiset for respondent.

November 15, 1888, in consideration of which (600]the defendant *agreed to pay the sum of $47- *Mr. Justice Brown delivered the opinion[5011

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, levied ing 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-

72

ing out, construction, and repairing of coun- | apply only to counties bordering on the Gulf ty roads, shall be provided for by general |

' of Mexico. Both the circuit court and the laws."

court of appeals, however, held that the last “Sec. 7. All counties and cities border-clause contained a separate and independent ing on the coast of the Gulf of Mexico are provision, and was applicable to the contract hereby authorized, upon a vote of two thirds made by the county for the building of this

of the taxpayers therein (to be ascertained bridge, and that, the petition of the plain(502]as may be * provided by law), to levy and col. tiff failing to show compliance with it, the

lect such tax for construction of sea walls, contract was void and the bonds issued with: breakwaters, or sanitary purposes, as may out authority of law. Both courts relied be authorized by law, and may create a debt upon the construction given by the supreme for such works and issue bonds in evidence court of Texas in numerous cases to this thereof. But no debt for any purpose shall section of the Constitution. ever be incurred in any manner by any city It is important in this connection to note or county unless provision is made, at the that the opinion of the circuit court was protime of creating the same, for levying and nounced on March 13, 1896, and that of the collecting a sufficient tax to pay the interest court of appeals on June 16, 1897. Since thereon and provide at least two per cent as that time, it is asserted that the supreme a sinking fund; and the condemnation of the court of Texas has taken a somewhat differright of way for the erection of such works ent view of the law, and an examination of shall be fully provided for.”

these several decisions becomes important. In apparent compliance with the sections in the earliest of them (City of Terrell v. above quoted, the legislature in 1887 enacted Dessaint, 71 Tex. 770) (1888), which was the following law (chap. 141, sec. 1): an action on a promissory note given by the

"Sec. l. That the county commissioners' city in payment for material for waterworks court of the several counties of this state are supplies, it was squarely held that the last hereby authorized and empowered to issue clause of section seven, above quoted, must bonds of said county, with interest coupons be held to apply to all cities alike, and that attached, in such amounts as may be neces- the clause contained no word or words which sary, for the purpose of buying or construct- restricted its application to the cities preing bridges for public uses within such counviously mentioned in the same section. ty, said bonds to run not exceeding twenty “The language is general and unqualified," years, and bearing interest at any rate not said the court, “and we find nothing in the to exceed eight per cent per annum.

context to indicate that the framers of the "Sec. 2. The commissioners' court shall Constitution did not mean precisely what is levy an annual ad valorem tax, not to exceed said; that is, that no city shall create any fifteen cents on the one hundred dollars val- debt without providing, by taxation, for the uation, sufficient to pay the interest on and payment of the sinking fund and interest." create a sinking fund for the redemption of It was also held that a debt of $1,500 for masaid bonds. The sinking fund herein pro-terials to extend its waterworks was within vided for shall not be less than four per cent the clause in question, and that as the curon the full sum for which the bonds are is rent expenses proper of the city exceeded its sued."

resources for *general purposes, and no ap-(504) It is admitted that no provision was made propriation was made for the payment of on July 3, 1888, "at the time of creating" | this debt, there could be no recovery. the debt, for levying and collecting a suffi. In Bassett v. City of El Paso, 88 Tex. 168 cient tax to pay the interest thereon, and (1895), it was held that the language and two per cent for a sinking fund, as required purpose of the Constitution were satisfied by the second clause of section seven, if said by an order for the annual collection by taxclause be applicable to a debt incurred for ation of a "sufficient sum to pay the interest building bridges. It was alleged in the pe- thereon and create a sinking fund,” etc., al. tition, however, that, in the February pre- though it did not fix the rate or per cent of ceding, the commissioners' court ordered an taxation for each year by which the sum was ad valorem tax of twenty cents for general to be collected, but left the fixing of such purposes, and an annual ad valorem tax of rate for each successive year to the commisfifteen cents for road and bridge purposes; sioners' court or the city council. It was and it also appeared that in the following Feb-con nded that the ordin ruary (1889) it ordered an annual ad valor-vided for the issue of waterworks bonds, was em tax of twenty-five cents for general pur- void, because it did not levy a tax, but deleposes; fifteen cents for road and bridge pur- gated to the assessing and collecting officers

poses; courthouse and jail tax of five cents, the power to make such levy from year to (603)and an ad valorem *tas of five cents to create

year. But it was said that "to so construe a sinking fund for bridge bonds to pay the these provisions as to require, at the time interest on said bonds.

the deht is created, the levy of a fixed tax Plaintiff insisted in the court below that to be collected through a long series of years, the language of the last clause of section without reference to the unequal 'sums' that beven, requiring a provision to be made for would in all probability be realized there the levying and collection of a tax to pay the from, instead of the collection annually of a interest and to provide a sinking fund, must certain 'sufficient sum' to pay the annual in. be read in connection with the preceding terest and create the sinking fund required clause of the section, and, taking the two to by law, would be doing violence to the langether, that the last clause must be held to guage used, and authorize, in cases where

ce, which pro

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values rapidly increase, the extortion from the court levied a courthouse and jail tax
the taxpayers of large amounts of money in of twenty-five cents on the one hundred dol.
excess of the amount necessary to satisfy lars, repeated during subsequent years, and
the interest and principal of the bonds, and increased to fifty cents; and every year after
this in turn would invite municipal corrup- the issue of the *bonds for bridge purposes(506)
tion and extravagance."

the court levied fifteen cents on the one hun. In McNeal v. City of Waco, 89 Tex. 83 dred dollars as a tax for road and bridge pur(1895), plaintiff sued the city on a contract poses. It was held, quoting Bassett v. El for building cisterns for fire protection, to Paso, 88 Tex. 175, that it was unnecessary recover the contract price for one and dam- to ascertain the rate per cent required to be ages for refusing to allow him to complete levied in order to raise the proper sum and the others. The petition failed to show a to actually levy that rate of tax at the time; provision for taxes to pay interest and a that if the laws of 1881 and 1887 had never sinking fund, or an existing fund for the been passed, the county would have had no payment; nor did the contract show facts authority under the Constitution to contract from which the court could say that it was the debts represented by the bonds, nor to an item of ordinary expenditure. It was levy a tax for the payment of the interest held that a general demurrer to the petition and sinking fund on such debts. The power should have been sustained, and it was also to do so could be derived from the legislature held that the word "debt" included every pe. only. “We understand," said the court, cuniary obligation imposed by contract out-that the provision required by the Constiside of the current expenditures for the year. tution means such fixed and definite arTo same effect is Howard v. Smith, 91 Tex. rangements for the levying and collecting of 8.

such tax as will become a legal right in fa(605) *Such was the construction placed by the vor of the bondholders of the bonds issued

supreme court of Texas upon the consti- thereon, or in favor of any person to whom tutional provision at the time when the case such debt might be payable. It is not suffi. under consideration was decided by the cient that the municipal authorities should courts below. It was held by the circuit by the law be authorized to levy and col. court that the county commissioners' court lect a tax sufficient to produce a sinking should have made provision at the time the fund greater than two per cent, but to contract was executed, July 3, 1888, by levy comply with the Constitution the law of a tax or otherwise, for a sinking fund, must itself provide for a sinking fund and the interest on the bonds issued for the not less than two per cent, or require of erection of the bridge; that the levy made the municipal authorities to levy and col. by the commissioners' court in February, lect a tax sufficient to produce the minimum 1888, could not be held applicable to the prescribed by the Constitution.” It was bonds in controversy, for the manifest rea- held that, the laws of 1881 and 1887 having son that the contract for the erection of the been enacted for the purpose of putting into bridge was not then in existence nor even force the constitutional provisions, it was in the contemplation of the parties, so far as the duty of the courts to so construe the laws the allegations of the petition disclosed; that as to make them valid and give effect to the general levy made in February, 1889, them. The court came to the conclusion that could not be held applicable to the bonds of these laws did make such provision for the the bridge company for two reasons: First, levying and collecting of a tax as was rebecause it was made some six months after quired by the Constitution, and that, in case the execution of the contract; and, second, be the court had refused to levy the tax after cause the order of the commissioners' court, the bonds were issued and sold, the bond. authorizing the levy, made no reference what holders would have been entitled to a manever to the bonds in controversy nor to the damus to compel the commissioners' court to contract between the county and the bridge levy such tax as purely a ministerial duty. company. The circuit court of appeals came The bonds, with certain immaterial exceppractically to the same conclusion.

tions, were held to be valid obligations of Since these cases were decided, however, the county. the supreme court of Texas has put a con- It is quite evident that if this case had struction upon the Constitution, which fully been decided and called to the attention of supports the position of the plaintiff in this the courts below, the validity of the bonds

In Mitchell County v. The City Nat. involved in this action would have been susBank of Paducah, 91 Tex. 361, decided in tained, and the main question involved in this(507) January, 1898, the action was upon inter- case is whether we shall give effect to this est coupons attached to bonds issued by the decision of the supreme court of Texas, procounty for the purpose of building a court. nounced since the case under consideration house and jail, and upon others for con- was decided in the courts below, and giving, structing and purchasing bridges. An act as is claimed at least, a somewhat different had been passed in 1881 with reference to construction to the Constitution of the state. the creation of courthouse debts similar to We do not ourselves perceive any such the act subsequently passed in 1887 respect inconsistency between the case of Mitchell ing bridge bonds, a copy of which is given County v. The City Nat. Bank, and the earlier above. The same defense was made that cases, as justifies the county, in the case unat the time of the creation of the debts the der consideration, in claiming that the sucounty, made no provision for levying and preme court of Texas had overruled the setcollecting a sufficient tax to pay the interest tled law of the state and set in motion a new and sinking fund, although for the year 1881 ' departure. No such inconsistency is indicat

case.

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