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means, but the latter would be by the means of either whole or fractional measurement. As the patents were simultaneous, there was no abandonment of what was covered in either by description in the other, and no priority in either to prevent a grant by the other, if both in any parts covered the same thing, but they do not appear to. Each patent is for a separate invention, and was necessary to secure to the inventor what it covered, and neither affords any excuse for infringing the other.

Motion granted



(Circuit Court, S. D. New York. June 25, 1904.)


The Misell patent, No. 617,592, for an electrical hand lamp, claims 1, 2, and 4, held void for lack of invention.


The Hoggson patent, No. 520,429, for an electric battery, held void for lack of patentable invention.

In Equity. Suit for infringement of letters patent No. 520,429, for an electric battery, granted to S. H. Hoggson May 29, 1894, and No. 617,592, for an electrical hand lamp, granted to David Misell January 10, 1899. On final hearing.

Briesen & Knauth (Arthur v. Briesen and Hans v. Briesen, of counsel), for complainant.

John T. Booth (N. L. Frothingham and Edward S. Beach, of counsel), for defendants.

HOLT, District Judge. In my opinion, the decisions of Judge Coxe in the American Electrical Novelty & Manufacturing Co. v. Newgold (C. C.) 108 Fed. 957, and of the Circuit Court of Appeals in the same case on appeal (113 Fed. 877, 51 C. C. A. 501), are decisive of this case. It was held in the Newgold Case that claim 3 of the Misell patent was void for lack of patentable invention, in view of the prior art. I cannot see that anything is included in claims 1, 2, and 4 of the Misell patent which is not included in claim 3, and I think that the Hoggson patent is void for the same reason as the Misell patent. It is stated in Judge Coxe's opinion in the Newgold Case that the complainant was licensed under the Hoggson patent, and its batteries constructed in 'accordance with its terms. Page 960, 108 Fed. The electric batteries described in the Hoggson patent seem to me to be merely the result of a combination of previous electrical devices, fully disclosed by the state of the prior art, as shown in the patents of Roovers, Levi, and Van Horvath, the combination of which by Hoggson in the manner described in his patent did not amount to a patentable invention.

My conclusion is that the bill should be dismissed, with costs.

Ex parte FOLSOM et al.


(Circuit Court, D. South Carolina. July 28, 1904.)




Act S. C. 1882 (18 St. at Large, p. 216), chartering the G. & P. R. R. Co., authorized townships interested in such construction to subscribe for stock and issue bonds in payment therefor, and section 9 (page 217) thereof provided for the payment of interest on such bonds by authorizing the county auditor to assess and the county treasurer to collect such tax on the property of the township as should be necessary to pay such interest. By Act S. C. 1885 (19 St. at Large, p. 240) the former act was amended so as to provide that all counties and the townships in such counties along the line of such railroad or interested in its construction were created bodies politic and corporate, with necessary powers to carry out the provisions of the act, and subject to all liabilities growing out of the same, and the county commissioners of the respective counties were declared the corporate agents of the counties and townships so incorporated and situated within the limits of such counties. By constitutional amendment (23 St. at Large S. C. p. 1227), the state Constitution of 1895, art. 7, § 11, providing that the several townships of the state should constitute a body politic and corporate, etc., was amended so as to provide that such section should not apply to certain townships which had issued bonds in payment of stock in the railroad under the acts of 1882 and 1885, and that "the corporate existence of such townships be and the same is hereby destroyed and all officers of such townships are abolished and all corporate agents removed." Held, that such constitutional amendment was intended to impair the means provided by law for the payment of the bonds so issued, and to that extent was obnoxious to Const. U. S. art. 1, § 10, as impairing the obligation of contracts.


Since the county auditor and treasurer, authorized by Act S. C. 1882 (18 St. at Large, p. 216) to levy and collect the tax for the payment of such bonds, were not officers or agents of the townships issuing the bonds in any sense, and the acts they were empowered to perform could be legally done independent of the corporate existence of the township, the abolition of the corporate existence of a township which had been organized as a corporation only for the purposes of the act did not deprive such officers of authority to levy the tax to pay such bonds issued by it.


The fact that after the issuance of bonds under such acts the township issuing the same became a part of another county by means of a change in the boundaries of certain counties was immaterial, since the township's obligation to pay the bonds attached to the territory included in the township which issued the bonds, and passed with such territory into the county to which it was added.

At Law.

Shields, Cates & Montcastle and H. J. Haynsworth, for petitioners. J. B. Pork and F. B. Grier, for respondents.

PRITCHARD, Circuit Judge. This is an application for a writ of mandamus to compel the auditor and treasurer of the county of Greenwood to assess and collect a judgment recovered against the township of Nintey-Six for certain bonds issued by it in aid of a railroad company. By an act of 1882 the Legislature of South Carolina chartered

the Greenville & Port Royal Railroad Company. Sections 6 and 8 of this act authorized cities, towns, townships, and counties interested in the construction of railroads to subscribe to the capital stock of said railroad company, and to issue bonds in payment thereof. 18 St. at Large S. C. pp. 216, 217. Section 9, as a means of paying the bonds, provided as follows:

"That for the payment of interest on such bonds as may be issued by the said counties, cities, towns or townships, the county auditor or other officer discharging such duties, or the city or town treasurer, as the case may be, shall be authorized and required to assess annually upon the property of such city, town, county or township such per centum as may be necessary to pay said interest of said sum of money subscribed, which shall be known and styled in the tax book as said railroad tax, which shall be collected by the treasurer under the same regulations as are provided by law for the collection of taxes in any counties, cities, towns or townships so subscribing and which shall be paid over by the said treasurer to the holders of said bonds as the said interest shall become due, on presentation of the coupons, which said coupons shall be reported to the county commissioners by the said treasurer, or to the council of any city or town where there are coupons from bonds of such city, or town, and all said coupons shall be cancelled by the county treasurer as soon as they are paid by them." Page 217.

In 1885, an amendatory act was passed in which the name of the railroad company was changed, and other alterations and changes were made, which do not concern the question at issue in this case. This act also amended the act of 1882 by adding the following provision to section 9:

"That for the purpose of this act, all the counties and the townships in said counties, along the line of the said railroad, or which are interested in the construction as herein provided for, shall be, and they are hereby declared to be bodies politic and corporate, and vested with the necessary powers to carry out the provisions of this act, and shall have all the rights and be subject to all the liabilities in respect to any rights or causes of action growing out of the provisions of this act, the county commissioners of the respective counties are declared to be the corporate agents of the counties or townships so incorporated and situate within the limits of the said counties." 19 St. at Large S. C. p. 240.

This provision designates the county commissioners of the respective counties as the corporate agents of the counties and townships so incorporated, and clothes them with power to issue bonds in such amounts as may be authorized by the voters of the respective territories in the manner therein prescribed. In accordance with the provisions of this section, the people of the township, at an election held for that purpose, declared in favor of the issue of bonds in aid of the construction of the railroad, and the county commissioners of Abbeville county, in the spring of 1886, under the authority conferred upon them by the Legislature, issued the bonds of the township in the amounts stated in the petition. These bonds were sold to innocent purchasers for value, and for two years the taxes were regularly assessed and collected, and the interest upon the bonds was promptly paid. In November, 1888, the Supreme Court of South Carolina, in the case of Floyd v. Perrin, reported in 30 S. C., at page 1, 8 S. E. 14, 2 L. R. A. 242, held that under the statutes of 1882 and 1885 the township of Ninety-Six was created a corporation, but without any corporate purpose, and that the section. of the act which undertook to authorize the issue of bonds was uncon

131 F.-32

stitutional, and the township bonds were invalid. For 10 years prior to this decision a number of similar acts had been passed by the Legislature of the state in pursuance of which township bonds were issued in aid of railroads, and placed upon the market, and until the decision in the case supra there had been no question or doubt as to the validity of these bonds. At the next session of the Legislature an act was passed declaring that, when the railroad had been completed through the township, the township bonds issued in aid thereof should be paid by taxation as provided in the original act. 20 St. at Large S. C. p. 12. This statute was held to be constitutional, and that a mandamus could be issued by that court to compel the collection of this tax. State v. Whitesides, 30 S. C. 579, 9 S. E. 661, 3 L. R. A. 777; State v. Harper, 30 S. C. 586, 9 S. E. 664; State v. Neely, 30 S. C. 587, 9 S. E. 664, 3 L. R. A. 672. The decisions in these cases practically settled the question in so far as the townships were concerned through which the railroad had been completed, and the interest was paid without further contest. On the other hand, the bonds of the townships through which the railroad had not been completed were not paid. On the 10th day of February, 1893, George W. Folsom brought suit against township Ninety-Six upon certain coupons clipped from its bonds. A demurrer was filed in behalf of the township, and Judge Simonton, in an opinion dated December 27, 1893, sustained the demurrer and dismissed the complaint. This case was carried to the Circuit Court of Appeals, and that court certified certain questions of law to the Supreme Court of the United States. The Supreme Court, in the fall of 1885, rendered a decision, which is reported in 159 U. S., at page 611, 16 Sup. Ct. 174, 40 L. Ed. 278, in which it is held that the decision in Floyd v. Perrin, having been rendered subsequently to the issue of the bonds in question, was not binding on the 'federal courts, and, considering the question upon its merits, the court held the statute was constitutional, and the bonds were valid, unless there was some other defense. The demurrer was overruled, and the defendant was allowed to file an answer. When the case came on for trial in the Circuit Court it resulted in a verdict for the plaintiff. The case was carried to the Circuit Court of Appeals, and the judgment below was affirmed. Ninety-Six Township v. Folsom, 30 C. C. A. 657, 87 Fed. 304. In the meantime other cases had been instituted against various townships, and judgment was obtained against the township in each case. A writ of error was sued out in one of them, and the judgment below was affirmed. Dunklin Township v. Wells, 31 C. C. A. 593, 87 Fed. 1004. These decisions terminated the litigation of this class of cases on the merits. In 1897 and 1899 acts were passed by the Legislature forbidding township commissioners, county commissioners, and all other officers from assessing any tax to pay these bonds, and forbidding the county treasurer and all other officers from collecting such tax. 22 St. at Large S. C. p. 534; 23 St. at Large S. C. p. 78. After these statutes were enacted, the auditor and treasurer declined to levy and collect the taxes as required by the statutes of 1882 and 1885, and the plaintiff in one of the cases filed a petition for a writ of mandamus. Judge Simonton, who delivered the opinion in Hicks v. Cleveland, 45 C. C. A. 429, 106 Fed. 459, among other things, said:

"The purpose of the General Assembly in passing the act to amend the enarter of the Greenville & Port Royal Railroad Company, approved December 24, 1885 (19 St. at Large S. C. p. 237), was to promote the construction of that road. To accomplish this, it authorized and encouraged townships along the proposed line of road to subscribe bonds towards this construction. In order to give character and credit to these bonds, and to induce the public to invest in them, the ninth section of the act provides a careful. full, and sure mode of provid ing for the interest. And an amendment to the same charter, made in 1887, provided (19 St. at Large S. C. p. 921) in the same way for the payment of the principal by taxation. These provisions of the act went into and formed a part of the contract moving to the bondholders, who invested their money trusting to the provisions. The contract could not be impaired by any subsequent act on the part of the state of South Carolina."

In this opinion Judge Simonton held that the acts of the Legislature which undertook to prevent the collection of the taxes in accordance with the provisions of section 9 of the acts of 1882 and 1885 were unconstitutional, and the judgment of the lower court directing the issuance of the writ of mandamus was affirmed. In the fall of 1891 an application was filed in the Supreme Court of South Carolina in behalf of certain taxpayers in the township of Dunklin, in which that court was asked to enjoin the county auditor and treasurer from levying and collecting the tax to pay the judgment which had been rendered. That court, on the 16th day of April, 1892, rendered its decision, in which it was held that a mandamus was in the nature of an execution to enforce a judgment of the federal court, and, among other things, it declared this "was an end of the argument, as it cannot be contended that a state court can enjoin any process of a federal court." McCullough v. Hicks, 63 S. C. 542, 41 S. E. 761.

Section 11 of article 7 of the Constitution of 1895 provided:

"Each of the several townships of this state, with names and boundaries as now established by law, shall constitute a body politic and corporate, but this act shall not prevent the General Assembly from organizing other townships or changing the boundaries of those already established; and the General Assembly may provide such system of township government as it shall think proper in any and all the counties, and may make special provision for municipal government and for the protection of chartered rights and powers of municipalities."

The following amendment to this section was proposed by a concurrent resolution of the Legislature of February 28, 1902:

"That this section shall not apply to the following townships in the following counties: Dunklin and Oaklawn in the county of Greenville; the townships of Cokesbury, Ninety Six and Cooper in the county of Greenwood; Sullivan in the county of Laurens; Huitt and Pine Grove in the county of Saluda. The corporate existence of the said townships be, and the same is hereby destroyed, and all officers in said townships are abolished and all corporate agents removed." 23 St. at Large S. C. p. 1227.

This amendment was voted upon favorably at a general election held in November, 1902, and in February, 1903, was adopted by the General Assembly by a concurrent resolution. Thus it became a part of the Constitution of South Carolina.

The petition upon which the writ of mandamus is based is as follows: "That George W. Folsom, the plaintiff in the above-entitled cause, was a citizen and resident of the state of Tennessee, and the defendant a territorial division of the state of South Carolina, situate formerly in the county of Ab

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