that the car would slide off the tracks and go over into the ravine.

Another witness said that he had been working on railroads for twenty years, and that from his experience he had had occasion to become acquainted with structures over tracks, over bridges and highways, and buffers at the end of chutes and tracks, and as to the control of the cars, their operation and the operation of the brakes on the cars, the stopping of cars, the resisting power of buffers, etc. He said that, in his opinion, the tramway house was too close to the top of a car, and that it was an impediment to the operation of the handbrake of the car, and that the buffer at the end was not an effective obstruction. Evidence was given by other witnesses, by depositions, in regard to the structure over the railroad track and the character of the buffer.

In the cases of all the witnesses, we think the question of the admissibility of their evidence was one within the reasonable discretion of the trial court, and that the discretion was not abused. All the witnesses had had practical experience on railroads, and were familiar with structures and the character of buffers mentioned in the evidence. There was certainly enough to call upon the court to decide upon the admissibility of their opinions under these circumstances, and we ought not to interfere with the decision of the trial court in this case. Spring Co. v. Edgar, 99 U. S. 645, 658; Chateaugay Ore and Iron Co. v. Blake, 144 U. S. 476, 484.

There is no error in the record and the judgment is

Affirmed.

Argument for Plaintiff in Error.

203 U.S.

UNITED STATES ex rel. LOWRY AND PLANTERS COMPRESS COMPANY v. ALLEN, COMMISSIONER OF PATENTS.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 56. Argued October 24, 25, 1906.-Decided December 10, 1906.

Rule 124 of the Patent Office which provides that no appeal can be taken from a decision of a primary examiner affirming the patentability of the claim or the applicant's right to make the same, is not void as contrary to the provisions of §§ 482, 483, 4904, 4910, 4911, Rev. Stats., or § 9 of the act of February 9, 1893, 27 Stat. 436. Those statutes provide only for appeals upon the question of priority of invention, and appeals on other questions are left under the power given by § 483, Rev. Stat., to the regulation of the Patent Office.

26 App. D. C. 8, affirmed.

THE facts are stated in the opinion.

Mr. Oliver Mitchell, with whom Mr. Edmund Wetmore was on the brief, for plaintiff in error:

An interference is a proceeding of a judicial character instituted by the Commissioner of Patents between rival applicants to determine priority of invention and patentability and is as much a fundamental question as priority, and under §§ 482 and 4909, Rev. Stat., all matters going to the applicant's right to a patent are appealable and must be adjudicated. Palmer v. Lozier, 90 Fed. Rep. 732; Podlesak v. McInnerney, 120 O. G. 2127.

In interpreting any statute in the absence of ambiguity, the ordinary meaning of its words and language control. Maillard v. Lawrence, 16 How. 251; United States v. Wiltberger, 5 Wheat. 76; Ruggles v. Illinois, 108 U. S. 526; Pitman v. Flint, 27 Massachusetts, 504; Putnam v. Longley, 28 Massachusetts, 487.

While the intent of Congress must be sought in the statute to be construed, prior legislation on the same subject can be

203 U. S.

Argument for Defendant in Error.

considered and that indicates that Congress intended appeals to lie as to patentability. See acts of 1870, 1 Stat. 109; of 1793, 1 Stat. 318; of 1836, 5 Stat. 117; of 1839, 5 Stat. 353; of 1849, 9 Stat. 395; of 1852, 10 Stat. 75; of 1861, 12 Stat. 246; those sections of act of 1870 incorporated in Rev. Stat. §§ 440, 476, 482, 483, 4904, 4909, 4910; § 9 of the Patent Act of 1893.

Rule 124 is inconsistent with law because it requires an appeal from the primary examiner to the Commissioner direct, but §§ 482, 4909, Rev. Stat., provide that such appeal shall be to the examiners in chief, the rule thus cutting down the jurisdiction of the latter; because it deprives parties to an interference of the right of review by the examiners in chief; because it forbids to one of the parties any appeal or review from certain decisions of the primary examiner as to the mechanical questions involved. This is not cured by any provisions in Rule 126.

Mr. Assistant Attorney General McReynolds, with whom Mr. John M. Coit was on the brief, for defendant in error: It was not the clear, ministerial duty of the Commissioner to permit plaintiff's appeal and petitioners have not shown they have a clear right to an appeal. Ex parte Cutting, 94 U. S. 14; High's Extraordinary Leg. Rem. 248.

The statutes relied on do not provide for interlocutory appeals, and no reasons exist for presuming an intent to make interlocutory rulings in interferences appealable prior to final judgments. United States v. Duell, 172 U. S. 576; Westinghouse v. Duncan, 66 O. G. 1009; 2 App. D. C. 131; Cross v. Phillips, 87 O. G. 1399; 14 App. D. C. 228; Hulett v. Long, 89 O. G. 1141; 15 App. D. C. 284.

The circumstances surrounding passage of appeal statute show interlocutory motions are not appealable. See § 2 of the act of 1861; Rule 58 of 1869 edition; Rule 59 of July 5, 1870, August 1, 1871, September 1, 1873, April 1, 1875, November 1, 1876; Rules 116, 117, 118, 141 of December 1, 1879. The Patent Office has never permitted appeals to examiners

in chief from the refusal of an interlocutory motion to dissolve an interference.

The rules permit review of interlocutory rulings with the final judgment and are inconsistent with law. Cross v. Phillips, 14 App. D. C. 228; Seeberger v. Dodge, 114 O. G. 2382; Podlesak v. McInnerney, 120 O. G. 2127; 26 App. D. C. 399; Pohle v. McKnight, 119 O. G. 2519.

Long established practice of the Patent Office is entitled to great weight, and the rules as to appeals in respect to which plaintiff in error complains has been the custom of the office for forty years. Re Crane and Rogers, C. D. 1871, August 23, 1871, Leggett, Commissioner; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1; 70 O. G. 1633.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This is a petition for mandamus filed in the Supreme Court of the District of Columbia, requiring the Commissioner of Patents to direct the board of examiners in chief to reinstate and take jurisdiction of the appeal of petitioners from the decision of the primary examiner, refusing to dissolve an interference between a patent granted to him and an application for a patent by one William L. Spoon. The Supreme Court granted the mandamus. Its judgment was reversed by the Court of Appeals.

The question in the case is, whether the rule of the Patent Office which denies an appeal from a ruling of a primary examiner, upon motion to dissolve an interference, is contrary to the Revised Statutes, and therefore void. Rule 124 pro

vides that "from a decision of a primary examiner affirming the patentability of the claim or the applicant's right to make the same, no appeal can be taken."

Plaintiffs in error attack the rule as inconsistent with the sections of the Revised Statutes which provide for interferences. These sections are inserted in the margin.1

1 R. S., SEC. 4904. Whenever an application is made for a patent which,

The facts are as follows: Lowry was granted a patent for a bale of fibrous material January 29, 1897. An interference was declared between his patent and application of one William Spoon, to which interference Lowry was made a party. He

in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be, and shall direct the primary examiner to proceed to determine the question of priority of invention. And the Commissioner may issue a patent to the party who is adjudged the prior inventor, unless the adverse party appeals from the decision of the primary examiner, or of the board of examiners in chief, as the case may be, within such time, not less than twenty days, as the Commissioner shall prescribe.

R. S., SEC. 4909. Every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, and every party to an interference, may appeal from the decision of the primary examiner, or of the examiner in charge of interferences in such case, to the board of examiners in chief, having once paid the fee for such appeal.

R. S., SEC. 4910. If such party is dissatisfied with the decision of the examiners in chief, he may, on payment of the fee prescribed, appeal to the Commissioner in person.

R. S., SEC. 4911. If such party, except a party to an interference, is dissatisfied with the decision of the Commissioner, he may appeal to the Supreme Court of the District of Columbia, sitting in banc.

SEC. 9 (Act of February 9, 1893, 27 Stat. 436, c. 74). That the determination of appeals from the decision of the Commissioner of Patents, now vested in the general term of the Supreme Court of the District of Columbia, in pursuance of the provisions of section seven hundred and eighty of the Revised Statutes of the United States, relating to the District of Columbia, shall hereafter be and the same is hereby vested in the Court of Appeals created by this act; and in addition, any party aggrieved by a decision of the Commissioner of Patents in any interference case may appeal therefrom to said Court of Appeals.

R. S., SEC. 482. The examiners in chief shall be persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the appellant, to revise and determine upon the validity of the adverse decisions of examiners upon applications for patents, and for reissues of patents, and in interference cases; and, when required by the Commissioner, they shall hear and report upon claims for extensions, and perform such other like duties as he may assign them.

R. S., SEC. 483. The Commissioner of Patents, subject to the approval of the Secretary of the Interior, may from time to time establish regulations, not inconsistent with law, for the conduct of proceedings in the Patent Office.