ticular piece of property is a finding that the government has performed its duty and perfected its task undertaken in behalf of these Indians, and that the condition of pupilage and dependency of the particular Indian is discharged, that I can find no reason for predicating such a construction upon any reasonable interpretation of the language used in the statutes. I am therefore of the opinion that these Indians are yet wards of the nation, even though the fee patent has been issued to their allotments; that they are still under a condition of pupilage and dependency, and have not been discharged from that condition; that it is a part of the national policy, by which these Indians are to be maintained as well as prepared for assuming habits of civilization and ultimately the privilege of citizenship, to gradually give to them the right to manage and dispose of certain property, as has been plainly indicated by these statutes with reference to the issuance of feesimple patents to lands.

The relation the government bears to these Indians is not of a particular person, but of a people; is not of a generation, but of generations; and, while gratifying progress has been made in the development of these dependent people to the ways of civilization, the government has yet to exercise patience and care for years to come, before these dependent people will have developed by education, civilization, and patient effort on the part of those charged with the responsibility, before the government can even consider the possibility of a determination that its duty towards these dependent peoples has been fully performed. This court held, in United States v. Pearson, 231 F. 270, that the Indians on the Cheyenne Indian reservation are still wards of the government and under the protection of the government, and that the civil and political status of the Indian does not condition the power of the government to protect their property or to instruct them and supervise them; that their admission to citizenship does not deprive the United States of its power, nor relieve it of its duty, to control their property and protect their rights from the rapacity and faithlessness of the members of the superior race, to discharge faithfully its legal and moral obligation to them, and to execute every trust with which it is charged for their benefit.

This question was involved in United States v. Chehalis County (D. C.) 217 F. 281. That action was brought to enjoin Chehalis county, in the state of Washington, from enforcing or collecting taxes levied on certain Indian lands, and praying that the clouds up

on the title of the allottees be removed; also asking for an accounting of taxes which had been paid by various individual Indians named. The action was commenced by the gov ernment before the expiration of the trust period named in the patents. Before the issue was tried, however, that period expired, and the defendant there urged this contention of the defendant in this case, to wit: That the government had lost control of this real estate; that the government was no longer the owner of the real estate of these Indians, and had no interest therein, because it was released by the expiration of the time; and that the guardianship of the Indians was thereby terminated. If that contention had prevailed in that case, it must have resulted in a dismissal of the action and a determination that each of the Indians therein named must proceed in the state courts for the determination of his rights. The action terminated in favor of the government, and the court, at page 284, said:

"If this suit may not proceed to decree, it is apparent that the United States is denied the right to make good its undertaking to these Indians-that the title should be held by it for the Indians for 25 years, not subject to encumbrance or taxation of any character. It is manifest that the only reason to support such a consequence would be because of the delay on the part of the officers of the United States in promptly securing injunetive relief when taxation was first attempted. Statutes of limitation, in the absence of special provision, do not apply to the United States. Laches may, but it is deemed that it would not in such a case as this, where a promise of protection had been made Indian wards and had not been promptly fulfilled.

And as to the right of the government to maintain an action after the expiration of the trust period, a situation like that that exists here, the court said: "The United States has such an interest in the lands of the Indian allottees, which it has agreed to hold in trust for a stated term free from all liens or taxes, that it may maintain a suit to recover back taxes which were unlawfully imposed on such lands during the term and collected from the allottees."

The power of the United States to maintain suits in its own court to prevent interference with the means it adopts to exercise its powers of government and carry into effect its policies was considered in United States v. Fitzgerald, 201 F. 296, 297, 119 C. C. A. 534 (see also citations). In that case it was said:

"The United States has the power, and for more than a century it has been, and still is, its governmental policy, to protect the Indians and their property from the force, fraud, cunning, and rapacity of the members of the superior race, and to teach them the arts and induce them to adopt the habits of civilization. Indian reservations, allotments of land in severalty with restrictions on alienation held in trust for the Indians, leases thereon on terms prescribed or approved by the Secretary of the Interior, agricultural implements, houses, barns, domestic animals, and other property furnished to the Indians by the United States, or held by the Indians subject to its control and management, are the means by which the United States exercises its power and carries into effect its policy to protect these Indians and their rights of property, and to teach them to abandon nomadic habits and become farmers, laborers, clerks, and business men. The United States may lawfully maintain suits in its own courts to prevent interference with the means it adopts to exercise its powers of government and to carry into effect its policies. It may maintain such suits, although it has no pecuniary interest in the subject-matter thereof, for the purpose of protecting and enforcing its governmental rights and to aid in the execution of its governmental policies."

The right of the government to maintain an action of this kind was considered in United States v. Fitzgerald, supra, at page 297 (119 C. C. A. 535), wherein it was said:

"The taking by the defendant of the personal property of the Indian Towanta, from him by fraud, without the consent of the Indian agent under whose control, supervision, and management it had been placed for the purpose of protecting it against the fraud and rapacity of members of the defendant's race, was an infringement of the governmental rights of the United States, a hindrance of the execution of its governmental policy, and a wrongful seizure of the lawful means it was using to carry that policy into effect. It was therefore a wrong for the redress of which the United States had the capacity to sue. It may maintain an action for damages for the fraudulent taking of the personal property of an Indian allottee, which is under the supervision, control, and management of the Secretary of the Interior, or his subordinate, an Indian agent, and may hold the amount it recovers in trust for the Indians whose property has been taken or injured, because such suits are lawful aids to redress infringements of its governmental rights, obstructions to the execution of its governmen

tal policy, and interference with the means it is using to carry that policy into effect." [5] The familiar doctrine that taxes voluntarily paid cannot be recovered is invoked by the defendant. Placing out of consideration the question whether payment by persons under such disabilities as tribal Indians can correctly be designated as voluntary, and the further question whether such rule is one to be invoked in equity, yet it is clear it has no application here. The exacting requirements necessary to take a given case out of the rule as to voluntary payment grows in part out of the policy of protecting the state from embarrassment in the matter of collecting its revenues. In such manner it does not enter itself in the lists under the same rules by which ordinary litigants must abide. It is hedged about by special privileges in such matter. The disadvantage of the individual in this particular does not obtain in a case such as the present, where the government itself seeks such recovery. To invoke such rule would be to grant immunity to the state-to facilitate the performance of its functions to the detriment of the United States in the discharge of its duties. The reason for the rule has then ceased to exist and therefore the rule is inapplicable. Chehalis Co., supra, 217 F. 285.

[6] The statute of limitation does not operate as against an action maintained by the United States, when the action is brought in public interest. United States v. Am. Bell Tel. Co., 159 U. S. 548, 16 S. Ct. 69, 40 L. Ed. 255.

"It is settled beyond doubt or controversy upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided-that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of lim- . itations, unless Congress has clearly manifested its intention that they should be so bound." United States v. Nashville, C. & St. L. Ry., 118 U. S. 120, 6 S. Ct. 1006, 30 L. Ed. 81.

This doctrine was declared by the court to be applicable with equal force, not only to the question of the statute of limitations in a suit at law, but also to the question of laches in a suit in equity. United States v. Insley, 130 U. S. 263, 9 S. Ct. 485, 32 L. Ed. 968. Stanley v. Schwalby, 147 U. S. 515, 13 S. Ct. 418, 37 L. Ed. 259.

[7] Under the circumstances of the case at bar, the record discloses that the defendant

assessed an illegal tax against these individual Indians, and then took advantage of the statutes of the state authorizing the carrying of a valid tax as a lien upon any real property that might thereafter be acquired by the individual against whom it was assessed, and did carry this illegal tax as a lien, upon the books of the treasurer of the county, against the particular allotments of these individual Indians, after the fee-simple patent had been issued to them, all of which was done for the sole and only purpose of forcing these individual Indians to pay this illegal tax, knowing that the land could neither be sold nor mortgaged, nor in any manner disposed of, without such payments. Because the county succeeded in its unlawful efforts in the collection of this tax, in this manner, it ought not to be heard to say that the tax was voluntarily paid. The moneys were collected from these various Indians by coercive means-by compulsion. The county and its officers could not reasonably have regarded it otherwise. Ward v. Love County, 253 U. S. 24, 40 S. Ct. 419, 64 L. Ed. 751.

As was further said in Ward v. Love County, supra, at page 24 (40 S. Ct. 422): "It is a well-settled rule that 'money got through imposition' may be recovered back; and, as this court has said on several occasions, 'the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.' To say that the county could collect these unlawful taxes by coercive means and not incur any obligation to pay them back is nothing short of saying that it could take or appropriate the property of these Indian allottees arbitrarily and without due process of law."

I am of the opinion the government may maintain this suit in its capacity as guardian and protector of the estates of these Indian wards, and further that under the findings in this case to which no exceptions have been taken-it was its duty to do so. It cannot be held the estate of wards of the government may be despoiled and dissipated, as charged in this bill, through fraud, collusion, and combination of the officers of the defendant county, to accomplish such purpose to the use and

benefit of the county. United States v. Apple (D. C.) 262 F. 203.

It appears by the stipulation in this case that there are really involved in the determination of the issues the rights of 160 Indians, representing, I assume, that number, or nearly that number, of families of the Indians of this Cheyenne River band of Sioux Indians, and involving the recovery of the payment of more than $10,000, for the benefit of these Indians in proportion to the amount they have paid, respectively. Considering the relation of guardianship sustained by this plaintiff, its right to maintain this suit for an accounting for the benefit of all of these wards should be sustained. To hold otherwise would result in a multiplicity of suits, to avoid which is a ground of equity jurisdiction. United States v. Chehalis, supra, 217 F. 283.

I am therefore of the opinion that the government may maintain this suit in its capacity of guardian and protector of the estates of these Indian wards, and further that under the charges made in the bill in this case, and supported by the findings of fact, it was its duty to do so, for, although it may appear that the Indians themselves each might have maintained a separate action, yet it cannot be held that the estate of these wards of the government may be despoiled and dissipated, fraudulent claims made against them and enforced by the officers of the county under the general laws of the state, and that the gov ernment of the United States, the guardian of their interests, is helpless to prevent the same or to obtain redress for their benefit.

It follows that it is my judgment that the findings of fact made by the master, and not excepted to by the defendant, support, the conclusions of law made by the master, and therefore that the findings and conclusions should be and are sustained; that judgment shall issue in favor of the plaintiff and against the defendant, requiring an accounting from the defendant for the funds collected from and paid by these Indians, respectively, the same to be paid to the plaintiff, and by plaintiff distributed to the various Indians named in the complaint, in the sum which the record shows they paid, respectively, with interest.

aff'd

12. Patents

ALLIANCE SECURITIES CO. v. J. A.

Where elements of composite structure do not perform joint function so that elimination of one would not impair function or operation of other, there is mere "aggregation," as distinguished from "patentable combination."

[Ed. Note.-For other definitions, see Words and Phrases, First Series, Aggregation; First and Second Series, Patentable Combination.] 3. Patents 58.

In patent infringement suit, under Rev. St. § 4921, burden of proving defense of anticipation is on defendants, and every reasonable doubt should be resolved against them (Comp. St. § 9467).

On issue whether device is patentable combination, law regards a change as evidence of

793

claims

168(1)—Unambiguous of patent are to be interpreted according to meaning of their own terms, uncontrolled by representations in argument.

Unambiguous claims of patent are to be interpreted according to meaning of their own terms, not controlled or limited by representations made in argument as to scope of invention or features wherein it differs from prior art.

13. Patents 316.

Where presumption of validity of patent is not overcome and infringement is made out, plaintiff suing under Rev. St. § 4921, is entitled to injunction and accounting (Comp. St. § 9467).

In Equity. Separate suits by the Alliance Securities Company against J. A. Mohr & Son and against the Standard Oil Company. Decree for plaintiff.

Affirmed in 14 F. (2d) 799.

Samuel E. Darby and Darby & Darby, all of New York City, and John L. McNab and Byron Coleman, both of San Francisco, Cal., for complainant.

Charles W. Owen and Owen & Owen, all of Toledo, Ohio, and J. J. Lermen, William K. White, and Charles M. Fryer, all of San Francisco, Cal., for defendant J. A. Mohr

& Son.

Pillsbury, Madison & Sutro and Felix Smith, all of San Francisco, Cal., for defendant Standard Oil Co.

KERRIGAN, District Judge. These are suits brought under Rev. Stats. §. 4921 (Comp. St. 9467), charging infringement of letters patent of the United States No. 1,196,691, for an invention of means for distributing liquids. The maker and seller, the De Vilbiss Manufacturing Company, has assumed the defense and is the real defendant

in each case. Plaintiff is the assignee of

as demonstration.

originally issued. [27]

The defenses which have been set up are

invalidity of patent, by reason of the prior art; prior public use; prior invention; want of invention; and fraud and imposition on the Patent Office, which estop plaintiff to maintain these actions.

The patent in suit is broadly defined as a means for atomizing and spraying liquids, and is specifically stated to be designed particularly for the spraying of liquids on surfaces to be coated. Air under pressure is utilized to discharge and atomize the paint, oil, varnish, or other material being sprayed, and the alleged invention is claimed to reside in independently controllable means

which are employed for regulating the pressure of discharge air, both into the paint container and from the discharge nozzle. A closed tank 1 contains the spraying material, and an air line 2-4 leads to its interior, from a source of air pressure supply. A reducing valve 6 is disposed in this line. A material discharge tube 14 leads from the tank to the inner tube of a discharge nozzle, while an air tube 15 leads from the air supply to its outer tube. In the air line 2-15 is a pressure regulator 9. Hand-operated spring or stop valves 16 and 16a are placed in the liquid and air discharge tubes 14 and 15, adjacent to the nozzle, and normally act to close those tubes when the apparatus is not in use.

In customary operation of a spraying device of this character, sufficient air pressure is maintained in the tank to force the liquid to and slowly from the discharge nozzle, and the force of nozzle-discharge of air is regulated to suit the material being sprayed, as well as the fineness or degree of atomization. The pressure in the tank is regulated and maintained substantially constant by reducing valve 6, in the air line to the tank, and pressure of air at the nozzle is regulated by a similar valve 9.

A study of the file proceedings leading up to the issuance of the Hopkins patent indicates that the application, which was filed on October 27, 1913, was subjected to a long prosecution before being allowed. The first action of the examiner was to reject it saying: "The claims are rejected on Quest (No. 627,877; June 27, 1899), in view of the fact that it would not be considered to involve invention to place a wellknown reducer in a paint-spraying machine. Furthermore, the reducer is shown in Fisher (No. 584,864; June 22, 1897)."

An amendment thereupon was filed, and the examiner again rejected the application, saying that "there would be no invention in applying well-known reducer valves wherever required in a paint-spraying apparatus, such as shown in Quest. This would seem to be nothing more than mechanical skill, especially in view of Fisher of record."

A second amendment was filed, and the application thereupon was finally rejected, with the statement that "to use a reducing valve in any of the tubes of Quest's apparatus in place of the hand-operated valves is lacking in patentable novelty." Then followed an addition of claims, and the primary examiner was requested by plaintiff's present attorneys to withdraw his final re

jection. In their argument it was stated that the air pressure in the tank must exceed the pressure of air discharge at the nozzle, and that this could not be accomplished by any of the prior art patents. In a supporting affidavit Hopkins said: "Most, in fact all, of the materials in common use for paint require more pressure to raise them to the point of application than it does to atomize them. Upon reconsideration, the examiner allowed certain claims and rejected others; whereupon appeal was taken to the Board of Examiners in Chief.

In their brief on appeal, counsel made similar representations with regard to the relative pressures of air in the paint tank and in the air lines to the nozzle. The examiners in chief, by a vote of two to one, refused to allow additional claims, and in affirming the rejection said that "in the Fisher patent there is an automatic valve E-4 which determines the air pressure which will be applied to the tank and valves C-4 in both the air and paint pipes by which the pressure at which each is supplied to the atomizer nozzle may be independently regulated."

Thereupon appeal was taken to the Commissioner of Patents, and briefs containing the same arguments were filed, together with another affidavit, to which reference hereinafter will be made. The Commissioner of Patents reversed the decision of the examiners in chief, allowing all the claims, and on August 29, 1916, patent finally issued. [1] To the question of infringement little attention need be given. The spraying apparatus used by defendant, of a type manufactured by the De Vilbiss Manufacturing Company, comprises a closed tank for the liquid to be sprayed, a spray nozzle, air pressure lines to the tank and nozzle, and a liquid line from the one to the other. A double air pressure regulator is mounted on the top of the tank, and is independently operable to regulate the pressure of air entering the tank, as well as that of the air passing to the nozzle. The purpose of mounting these regulators on the tank is to provide them with a single mount, and to increase the convenience of adjustment, as well as of carriage.

Defendants assert that the claims of the Hopkins patent are limited to an independent arrangement of the air regulators, and that if the present tank constitutes an infringement, this could be avoided by arranging the regulators in series; in other words, that by placing reducer 9 between the air supply and reducer 5, so that the air