82 FEDERAL REPORTER.
J,'egarded as part of a salary any district attorney may be entitlOO'to.· Converse v. U. S., 21 How. 463; U. S. v. Brindle, 110 U: S. 693,4 Sup. Ct. 180. With this view of the case as presented, I fi:nd,tMt complainant is entitled to the judgment prayed for in his ci:nrmlaint. It is therefore ordered that the complainant have judgmentagainst United States fol' $980.
In re MAY. , (Circuit Court, D. Montana. No. 472. 1. CO:KSTI.TUTIONAL LAW-INTERSTATE COMMERCE-VALIDITY OF STATE LAWS.
August 5, 1897.)
To state statute void on the ground that It affects commerce between,the states, it must involve some discrimination against goods shipped. from other states,. or against persons engaged in such commerce.
2.
SAME-SALES OF CIGARETTES-MoNTANA LAW.
,Pol. Code Mont. § 4064, sUbd. 15, requires all persons engaged in selling cigarettes, whether on commission 01' otherwise, to take out a license and pay a quarterly license fee, and also a license fee of $10 a month. Pen. Code, § 780, renders the Qonducting of such a business without a license & misdemeanor, and section 19 imposes a penalty of fine or imprisonment. The applicant, residing. and engaged in the business of selling cigarettes at F,[elena, Mont., purchased from the American 'l.'obacco Company, in New York, a number of packages of'clgarettes, which were accordingly shipped to and received by him; he also received from the company packages of cigarettes to be sold by him as its agent. The cigarettes were put up in small boxes, on each of which was an Internal revenue stamp, and which were packed in a larger box for shipment. He was convicted of selllng, without a license, one package of those bought by himself and one of those sent him for sale. On application for a writ of habeas corpus, h6ld, that the statute above cited does not impede, restrict, or Interfere with commerce among the states.
S.
SAME-ORIGINAL PACKAGES.
Where cigarettes put up in small boxes, bearing internal revenue stamps. are shipped from one state to another, the boxes constitute original pack· ages; but when they reach their place of rest for final disposal, and are to remain there until sold to customers, they thereupon become a part ot the mass of the property of the state. When it appears that the petitioner for a writ of habeas corpus is held uncler the judgment of a state court of competent jurisdiction, a federal court should not grant the writ unless the pivotal point has been finally decided by the supreme court, and the Illegality of his detention is beyond question. AND th'ATE COURTS-HABEAS CORPUS.
4.
This was an application by Robert D. May for a writ of habeas corpus. Elbert D. Weed, for petitioner. C" B. Kolan, respondent. District Judge. It appears from the statement of 'facts presented to the court, which facts are agreed to by Atty. Gen. Nolan appearing for the state of Montana, that the applicant, Robert .D. May, is and was, at the time he was arrested for the offense hereinafter stated, and {or a long time prior thereto had been, a citizen of
IN RE MAY.
423'
Montana and a resident therein; that on the 3d of June,' 1897, and for a long time prior thereto, he, the said May, was ,engaged in Helena, in said state, in the sale of cigarettes; that he pmchasedoLthe American Tobacco Company, in the of New York, a number of packages of cigarettes, to be shipped to him to Helena, Mont., and that said cigarettes were so shipped and received by the petitioner at said point; that the American Tobacco Company sllipped' them from the city of New York to petitioner, to the city of Helena, Mont., to be sold by him as the agent of said company, and they were received by applicant as sucb agent; that the cigarettes were placed in boxes, the number of 10 in each box; that on each of these boxes, an internal revenue stamp was placed; that these boxes were, ,Placed in a larger box for convenience of shipment; that the said cigarettes were exposed for sale by said May in his place of business at Helena, Mont., and on the 3d day of June, 1897, at said place of business; he sold one package of those purchased by himself in New York, and also one shipped to him, to be by him sold, as the agent of the said American Tobacco Company, to one George L. Cressap. On that date a complaint was filed before a justice of the peace named John Steinmetz, by said George L. Cressap, which is as follows, to Wit: "The State of Montana vs. Robert D. May. "Personally appeared before me this day George L. Cressap, who, being flrst duly sworn, complains and says that one Robert D. May did, on the 3d day of June, A. D. 1897, at Lewis and Clarke county, state of Montana, with force arid arms, wrongfully, willfully, and unlawfully carry on and transact the business of selling cigarettes at retail and as a retail dealer in cigarettes, for the transaction and carrying on of which said business a license is required' and prescribed to be taken out and procured from the duly elected, qUalified, and acting county treasurer of said Lewis and Clarke county by the laws of tlie state of Montana, to wit, subdivision fifteen (15) of section 4064 of the Political Code of the said state, without at said day baving taken, out' or procured the said license so prescribed by law as aforesaid, and without at the time aforesaid being In the possession of said license so prescribed by law fol' the carrying on and transacting of the said business; all of which Is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Montana. Said complainant, therefore, prays that a warrant may be issued for the arrest of the said Robert D. :Ylay, and that he may be dealt with according to law. George L. Cl'essap. "Subscribed and sworn to before me this 3d day of June, 1897. "John Steinmetz, "Justice of the Peace, Helena Township, Lewis and Clarke County,
Upon this complaint the said May was arrested and tried, and found guilty of the offense therein charged, and fined one dollar and costs, and adjudged to stand committed to the custody of the constable of said Helena township until such fine and costs should be paid, and in accordance with such commitment is now in custody. The statute under which the complaint in this case was made is as follows, to wit: "Every person who at a fixed place of business sells any goods, wares or merchandise or distilled liquors, drugs or medicines, jewelry or wares or precious metals, whether on commission or otherwise, and all butchers, must obtain from the county treasurer in which the business is transacted. and for each branch of such business, a license, and pay quarterly therefor an amount of money to be determined by the class in which such pers'iln is placed
424
by the county treasurer; such business to be classified and regulated by the
aniount of the monthly aVerage sales made or hiring done and at the rate following those who are estimated to make average monthly sales to the amountr
Then follows the several amounts of such monthly sales, and the license charged, commencing at $100,000 or more per month, for which a license of $75 per month must be paid, down to a business in which tl:J.e Ilales amount to less than $400 per month, for which a license of $3 per month is required. Division 15 of this section is as follows: "Every Person or persons who is engaged In the business of selling cigarettes. cigarette papers or material used in making cigarettes, except tobacco, shall pay a I1dense of ten dollars per month In addition to any other license herein provided for."
See l?,oL Code Mont. § 4064. Section 780, Pen. Code Mont., provides that any ODe who conducts any business for which a license is required, without taking out a license therefor, shaH be guilty of a misdemeanor. SectiQn 19, Pen. Oode Mont., provides that when no definite punishment is provided, every offense declared to be a misdemeanor is punishable bv imprisonment in a county jail not exceeding six months, or by a fine not $500. Under the law defining the jurisdiction of justice of the peace courts, such a court had jurisdiction in Montana of such a misdemeanor as the one above -named. The applicant urges that the license required in this case is in contravention of that part of the constitution of the United States which gives congress control over interstate commerce; in other words, that this license interferes with such commerce or impedes it. It is claimed that the right to ship cigarettes from the state of New York to that of Montana carries with it the right to sell the same in Montana in original packages. There is no doubt but that this is the established doctrine of the federal courts. Leisy v. Hardin, 135 U. S. 100. 10 Sup. Ct. 681. Under the authorities in the federal courts it is establishedthat.a box holding 10 cigarettes, having upon the same an internal revenue stamp, is an original package. In re Minor, 69 Fed. 233. In considering the facts presented in this case, we find that May "was on the 3d day of June, 1897, and for a long time prior thereto, engaged at Helena," in said state and district, in the sale of cigarettes. From this statement it is evident that the said May was engaged at Helena, Lewis and Clarke county, in the business of seIling cigarettes. Said section 4064 of the Political Oode of Montana, above referred to, provided a license for doing certain kinds of business. There is no discrimination against any business because it pertains to articles shipped from any other state or foreign country. The license for engaging in the business of selling cigarettes per· tains to the same, whether the said cigarettes are manufactured in Montana or elsewhere. The complaint under which May was arrested, and tried and convicted, charges only that he, the said May, was conducting the business in said county and state of selling at retail cigarettes. The question then arises as to whether this law
IH BE YAY.
425
is one that interferes or impedes or restricts in any way commerce among the states of the Union. In the case of Machine Co. v. Gage, 100U. S. 616, the question was presented to the supreme court 8S to whether a license tax upo.n peddlers selling sewing machines in the state of Tennessee was vOId and could not be enforced. The license was for the peddling of sewing machines, whether manufactured in the state of Tennessee or els where. The court, after reviewing se-veral of its decisions coneern.ing statutes which it was alleged imposed restrictions upon interstate commerce, said: "In all cases of this class to which the one before us belongs, it is a te'Jt question whether there is any discrimination tn favor of the state or the citizens of the state which enacted the law. Wherever there is suchdiscrimlna· tion, it is fatal. Other considerations may lead to the same result. In the case before us the statute in question, as construed by the supreme court of the state, makes no such discrimination. It applies to all sewing manufactured In the state and out of It. The exaction Is not an unusual or unreasonable one. The state, putting all such machines upon the same foOtillg with respect to the tax complained of, had an unquestionable right to impose the burden."
In the case before the court the law made as to the sale of cigarettes as to whether they were manufactured in or out of the state. In the case of Osborne v. Mobile, 16 Wall. 479, the supreme court held that a license tax upon a business which included transportation beyond the state was not in violation of the national constitution, which gave congress power to regulate commerce among the states. In this case the supreme court said:. between its citizens and the citizens of other states, might be constitutionally imposed and collected." tax on a .business carried on within the state, and without discrimination
"In the second of the cases recently decided the whole court agreed that a
The case referred to is Case of the State Freight Tax, 15 Wall. 232. In the case of Emert v. Missouri, 156 U. S.296, 15 Sup. C1. 367, the previous decisions of the supreme court npon laws affecting cOmmerce between states are reviewed. In all these cases it. appears that, to render a law void as affecting such commerce, there ·must be some discrimination against goods shipped .from other states, or against persons engaged in such commerce. In that case it was held that a law requiring a license from a, peddler. of sewing machines was not void, although in the case presented the machine sold was manufactured in another state. In this case the doctrine is maintained that a license. required bv law: upon a business, which law does not discriminate against foreign goods or persons of other states, is not in violation of the federal constitution. . The case of In re Minor, 69 Fed. 233, it must be confessed,ds One very much like the one at bar. By. the law of West Virginia, it license of $500 was required of anyone' engaged in the business of selling cigarettes or cigarette paper. Cigarettes were purchased in New York of the American Tobacco CompanY,and shipped to Minor, in West Virginia, and were exposed by him for sale at his (Minor's) place of business, at Martinsburg, in said state. . '!'he said American
42()
82 FEDERA.L, REPORTER.
.said Minor to be sold by him as the agent of said company. The goo.ds were exposed f:0l'i&a.:Le'dn! origillal' and two packages sold to . one Gearheardtnby. Minor. Minor waJil",arrested, and made application for a writ 9tJiaOeas corpus. The. writ was granted, and he was discharGoff held. that the law requiring a license for the sale of was void"asthe same had manufactured in New York,'Iil.'lld shipped to said Minor in West Virginia, and by him exposed fQr .sale in the original packages. In his opinion he says: "It will be kept in mind that the state, by this legislation, is not taxing the propertJ( imported by. the. petitioner as it does other property within its ,a gener.al. and unifCirmtllx rate, but that this tax is imposed.for the plwllege of llelling the impc;>rted articles, and is as to them specIal and adl1i¥?nal."·· , .' .
of the Virginia statute, I do not think there butthat the position taken by that distinguished judge is fully sustained!?y the decisions of the supreme court. I do not believe, the statute of :M:ontanacan be considered as a special tax imposed for the privilege of selling the imported article. The tax imposed is, upon the. of selling cigarettes, whether manuin another state. In that decision the learned judge states "that it is only by the sale of the imported article,that ming\ed,with the other property within the state." la.nisure'rhis .position cannot be maintained. In the case of Brown v.Hqu!,\ton"H4 V. S. l).22, 5 Sup. Ct. ,1091, the supreme court said, of a , tax i,mRosedupon a certain lot of coal shipped from Pennsylvania and stiIIin the boats in whiCb. it was shipped, and still owned by parties in the state from which it was shipped: was the coal had at its destination and was put up for sale. hadco,me to its place of rest for final disposal or use, and was' a comnlodity intlie market of New Orleans. It might continue in that condition for a year or two years or only for a day. It had become a part of the general mass of property in tl;1e state."
In the case ofRobbins v, Taxing Dist., 120 U. S. 489,7 Sup. Ct. 592, the supl'emecol1rt again' affirmed the above rule, and said:
flt4te."
goodS are sent froni' one state to another for sale, or in consequence of· a :sale, they ,become part of its general property, and amenable to its laws, proyi4ed i that no discriminatlonbe made against them as goods from another
.
:'Xhe cigarettes sold by May in this case had reached their destinatjpn and we're exposed here for sale. They had reached their place .Qt xest, and .were" to remain here until sold to customers. Under the rille above expressed,' itwonld appear to me that they had become ,a<,part of the, mass of the property of the state. Considering, then, that the tax in this caae was upon the business of seIling cigarettes, anc;l that they had become a part of the general property of the state, I hold that the, license law under consideration cannot be considered void, as in viQlatidnof any provision of the federal constitntion. :' There :is ,a .further point presented in this case. The license law which the applicant disregarded is a plain statute, making no discrimillation <foreign goods or foreign citizens. The complaint ,uuderwbicilthe applicant was arrested charges simply a violation of
427
this statute. t cannot doubt that the court which tried the' appli· cant had jurisdiction of this offense and of his person. Under such conditions, the authorities sustllin the view that a federal court should not grant a writ of habeas corpus. In the case of Ex parte Spickler, 43 Fed. 653, the circuit court, speaking by Judge Shiras, said: "1.do not question the existence of the power' In the United States circuit court to grant writs of habeM corpus It Is alleged that. a person is deprived of his liberty by state action contrary to the provisions of the federal constitution, but It Is a power to be sparingly exercised. When it appears. th!lt the petitioner is held under the judgment of a state court of competent JurISdiction, before this. court SllOUld grant him a discharge it should be made to appear that the illegality of his detention Is beyond question; and In all cases wherein the pivotal point has not been finally decided by the supreme court, but still remains a debatable question, the circuIt court should not discharge the petitioner, for this would be simply converting the writ habeM corpus into a writ of error, by means of which this court would be l;\,Ilked to review the judgment of the state court upon a debatable question of law arising under the"federalconstitutlon, but which it was the dUty of that court to Investigate and decide."
It cannot be said that the very point pr¢sented in this case has been decided by the supreme court adverse to the rightof·the state to levy and collect this tax. In the case of Ex parte Ulrich, 43 Fed. 661, the circuit court for the Western district of Missouri said: "';l'he district court of the United States has no jurisdiction, by writ of habeas corpus, to declare a judgment of a state criminal cOl1rt a nullity, and the petitioner from 'Imprisonment imposed ,by It, where such court had plenary jurisdiction over the person, the place, the offense, and everything connected with it. In such cases It is the right ·andduty of ,the state courts to decide questions arising under the constitutibn and laws of the United States, and if it errs the remedy is by appeaL"
The state court in this case would have the right to determine the question as to whether May was conducting the bU!,!iness of selling cigarettes without a license. If the evidence that he sold two packages of such merchandise on the 3d. day of said June was not sufficient to show that he was conducting that busmess, that was an error which cannot be reviewed upon habeas corpus. It should be borne in mind, however, that it is admitted the petitioner was engaged in the business of selling cigarettes generally in Lewis and Clarke coun· ty. In the case of Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. M:2, amotion was made in the supreme court for permission to file a peti· tion for a writ of habeas corpus. The question was presented as to the right to this writ. The court said: "'Ve are of the opinion what was done by that court WR!l within its jurisdiction, the question thus raised by the prisoner WM one' which it was COllJpetent to decide, which it WM bound to decide, and that its decIsion was the exercise of jurisdiction."
Under these circumstances the court held that the petitioner was not entitled to the writ, as the court in such a proceeding could not review the judgment of the court under which he was imprisoned. Holding, as I do, that the court under whose judgment petitioner is held in eustouy had jurisdiction of the offense charged in the com-
82 FEQERAL REPORTER.
PlaJ,l;lt before. it and of the petitioner, I must maintain that this court cannot review its judgment. The writ of habeas eorpus prayed for in this case is therefore denied.
BONNE'l'TE.AROLAWN SPRINKLER CO. T. KOEHLER et aJ.
(Circuit Court of Appeals, Sixth Circuit. October 11, 1897.) 1N0. 500. 1. PATENTS-INVENTION-CONS1'ItUCTION OF CLAIMS-LAWN SPItINKLERS.
Theconceptlon of a rotary 'lawn sprinkler, having concave wings, Into which the water was delivered from one side, so as to be distributed over a semicircular area on one side of the distributing point, whereby the distrlbutloncould be made from a point near a walk, fence, or building without' wetting the same, wi!iIe not an Invention of a primary character, yet disClosed sufficient ingenultr to prevent the application .of technical rules intended to narrow the scope of patents of doubtful validity, or to impair or destroy them. The use of lettets in a claim to designate its elements does not prevent its liberal construction.
SAME-CONSTRUCTION OF CLAIIfS,-REFERENCE LETTERS.
3. SAME-INFRINGEMENT-DuPLICATION OF PARTS.
The mere dUPllcati'On of parts to 'produce the same result does not prevent infringement, even though It may Inv,olve tributary Invention.
SAME-LAWN SPRINKLERS.
The Bonnette- patent, No; 46.l,415, for a: lawn sprillJd(;)r having devices for the l water over a semicircular area on one side oj' the distributing point, construed, and held, vlllid and Infringed as to the third claim.
Appeal fr,0IIl the Oircuit Court of the United States for the North"'. ern District of Ohio. This was l! suit in equity by the Bonnette Arc Lawn Sprinkler Company against Frederick E. JKoehler and Isaac Harter fOf alleged infringement .of a patent for a lawn 'sprinkler. The circuit court entered a decree dismissing the bill"and the complainant has appealed. R. A. Parker, for 'appellant. Cyrus E.Lothrop, for appellees. ,TAFT and. LURTON, Circuit Judges, and SEVERENS, ' District Judge. TAFT, Oircuit Judge. This is an appeal in a patent suit from a decree dismissing the bill on the ground that the defendant's device does not infringe the patent sued on. Complainant and appellant is the owner, by assignment, of patent No. 461,415, issued to T. C. Bonnette, for a lawn sprinkler, October 20, 1891. It is said by the inventor in his specifications to be of that class of sprinklers in which a jet of water under pressure is distributed in the form of a spray over the lawn by rapidly revolving blades. One object of the invention, and the only one of importance in this case, is stated to be "to provide devices for distributing the water over a semicircular area upon one side of the distributing point, whereby the water may be distributed from a point near a walk, fence, or building without wetting the