Commission of Ohio. CLARK et al. v. POOR et al., Public Utilities transportation company, they are engaged exclusively in interstate commerce, they are District Court, S. D. Ohio, E. D. October 19, not in any wise subject to the provisions of 1925. No. 385. Carriers 18(6)—Interstate carrier, which has not offered to comply with valid provisions of Ohio Motor Transportation Act, held not entitled to enjoin enforcement (Gen. Code Ohio §§ 614-84 to 614-102). A motor transportation company of another state, engaged solely in interstate transportation of property between a terminus in Ohio and one in Indiana, which has made no application to the Public Utilities Commission of Ohio for a certificate of public convenience and necessity, or otherwise offered to comply with provisions of Ohio Motor Transportation 1923 Act, as amended in 1925 (Gen. Code Ohio, §§ 614-84 to 614-102), which have been sustained as valid, as applied to interstate carriers, held to have no standing to maintain a suit against the commission to enjoin enforcement of the act against it. In Equity. Suit by Benjamin H. Clark and Charles Riggs, partners doing business as Clark & Riggs, against George T. Poor and others, constituting the Public Utilities Commission of the state of Ohio. On motion for preliminary injunction. Injunction denied, and bill dismissed. Bettinger, Schmitt & Kreis and Paxton, Warrington & Seasongood, all of Cincinnati, Ohio, for plaintiffs. John W. Bricker and W. E. Benoy, both of Columbus, Ohio, for defendants. Before DONAHUE, Circuit Judge, and WESTENHAVER and HOUGH, District Judges. PER CURIAM. This suit was brought to enjoin the defendants from enforcing against plaintiffs the provisions of the Ohio Motor Transportation Act of 1923, as amended in 1925, being sections 614-84 to 614 102, General Code of Ohio. It was heard before three judges on an application for a preliminary injunction under Act of October 22, 1913 (U. S. Comp. Stat. 1916, § 998). The defendants having filed an answer prior to this hearing, it was stipulated that the cause should be submitted for final decree upon the merits. The plaintiffs are a partnership, having their residence and principal place of business at Aurora, Ind. It is admitted in their bill that they are common carriers of property for hire and otherwise, within the definition of a motor transportation company as made by the statutes above referred to. The contention is that because, as such motor that law, and that defendants may not enforce any of its provisions against them. It is also admitted that they are operating motor vehicles between fixed termini; i. e., between Aurora, Ind., and Cincinnati, Ohio. It is asserted, without dispute, that they make regular and irregular trips, but do not accept for transportation or delivery any property so received, except between these fixed termini. In other words, they are not engaged in any intrastate business. Plaintiffs have made no application to the Public Utilities Commission for a certificate of convenience or public necessity. Defendants' answers and affidavits show without controversy that the Public Utilities Commission is willing, and has offered, to issue that certificate on condition only that plaintiffs furnish insurance policies required by section 614-99, pay the taxes on each vehicle, as provided by section 614-94, and otherwise observe and comply with the police regulations and orders of the commission, the same as is required of intrastate carriers. Plaintiffs in their bill make no complaint of any specific police regulations, whether prescribed by the Motor Transportation Act or complain of any burdensome orders or reguby order of the commission; nor do they do not even complain of the requirement of lations established or applied to them. They the law for keeping a system of uniform accounting. The answering affidavits of defendants show that no effort has been made to apply this provision of the law to the plaintiffs or other transportation companies engaged in interstate transportation. Hence the controversy resolves itself to the inquiry whether, because defendants intend to enforce the requirement for payment of taxes and the giving of liability and cargo insurance, the plaintiffs are exonerated from all obligation to apply for and take a certificate of necessity and public convenience and observe the provisions of the law applicable to the plaintiffs. As we understand their contention, it is that they are so exonerated solely because they do no intrastate business. Upon plaintiffs' admission that they are common carriers for hire between fixed termini and otherwise, within the definition of the Motor Transportation Act, it is plain that they are obliged to comply with all the provisions of this law, not unconstitutional, as applied to them. If defendants have been and are willing to grant the certificate, and 20 F.(2d) 183 are not seeking to enforce any system of uniform accounting against the plaintiffs, and if there are no specific police regulations in the law or orders of the commission complained of, then plaintiffs are without equity, except in so far as the conditions annexed to defendants' offer may be unconstitutional. In Red Ball Transit Co. v. Marshall et al. (D. C.) 8 F. (2d) 635, this day decided, we have held that the tax imposed is not invalid as applied to a motor transportation company engaged in interstate commerce. It is also therein held, on authority of Liberty Highway Co. v. Michigan Public Utilities Commission (D. C.) 294 F. 703, and Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105, that the liability and cargo insurance requirements are unreasonable and invalid. See our opinion for further discussion. It must be understood that this holding is limited to the specific facts before the court, in our opinion and in the several cases cited, and is not to be taken as holding invalid liability and freight insurance in different situations, such, for instance, as were approved in Re Opinion of Justices, 251 Mass. 569, 147 N. E. 681. The final order of the court in the Liberty Highway Company Case was that, until the party complaining had offered to comply with the provisions of the law sustained by the court, it was not entitled to an injunction, even as against the provisions held to be invalid. In the present case, no application having been filed for a certificate of convenience and public necessity, and no offer made to comply with any of the provisions of the law, this court cannot now assume that defendants would refuse such a certificate with requirements limited in accordance with the views expressed herein and in opinion in the Red Ball Transit Co. Case. Plaintiffs are therefore without equity. Their bill will be dismissed, and injunction denied. Costs will be taxed against plaintiffs. ning by air pressure in course of manufacture, held valid, not anticipated, but not infringed by thinning by drag with light air pressure, to prevent stock from running back in course of manufacture. In Equity. Patent infringement suit by the Byron Weston Company against the L. L. Brown Paper Company. Bill dismissed. See, also, 13 F. (2d) 412. J. Stanley Churchill, of Boston, Mass., and C. L. Sturtevant, of Washington, D. C., for plaintiff. Emery, Booth, Janney & Varney, of New York City, for defendant. MORTON, District Judge. This is a suit for the infringement of reissued patent to Weston on method of making paper, No. 13,730, dated May 12, 1914. It was heard in open court, and at the conclusion of the testimony I took a view of the defendant's machine in operation at its mill in North Adams, Mass., and of the plaintiff's machine in its mill at Dalton, Mass. On the view, I made a careful examination and study of the operation of each machine at the point to which the patents relate, and numerous experiments were made in my presence at each place. The information gained in this way has been extremely helpful in arriving at a decision. The plaintiff's patent is upon a method of making a thin stripe (or "strip") in a sheet of paper. The stripe makes the sheet more flexible on that line, and such paper is widely used in loose-leaf record and account books, because it will lie flatter than ordinary paper. The plaintiff's invention provides a simple and comparatively inexpensive way of accomplishing a result which theretofore had only been achieved by less direct methods and at much greater expense. The process relates to paper-making machines of the Foundrinier type. They are very large, being over 100 feet long. Paper stock is fed into one end and a completed sheet of paper is turned off at the other. They are perfectly well known in the art, and I shall not undertake a description of one, but will go directly to the point here involved. The paper stock consists of fiber in suspension in water; it is very fluid. As it flows to the web wire on which the paper is formed, it is 99 per cent. water and runs like water. The first step is to even up its thickness across the wire. This is done by slice bars, which are merely straight edges set at proper distances above the moving web wire. The thickness of the web of paper is determined by the second slice bar. As the web moves forward, it is shaken sidewise to interweave the fibers, and the water is continuously withdrawn. The stock becomes less and less fluid as it progresses, and more and more pulpy, until finally it becomes a pulp much like very soft blotting paper. By suction boxes and roller pressure the remaining water is extracted, and the paper is then dried over heated rolls. The thin stripe, or "hinge," as it is also called, is about two inches wide (as I saw it), and the problem was how to make such a stripe of proper and even thickness, without forming ridges along its edges, which would interfere with the successful use of the paper commercially. Weston discovered that this could be done by the use of air applied either by pressure or suction through a nozzle held close to the wet stock. It was a simple and practical idea, which works successfully. The single claim in the suit reads: "2. The method herein described of manufacturing paper having a thinned portion, which consists in removing from the web at the portion to be thinned, along a defined line, some of the material by the application of air pressure thereto." On the plaintiff's machine no air blast is used. Suction nozzles are placed above the liquid stock a short distance ahead of the drag bar, or second slice bar, at a point where the stock is sufficiently matted and pulpy not to run into and fill up the thinned portions, and they suck away enough of the stock to make a stripe of proper thinness. The stripe thus created remains and becomes permanent as the web dries. The same result can be obtained, although rather less successfully, by the application of a flat jet of air of the proper width and force at a point somewhat further ahead, where the stock has become too pulpy to flow. A good deal was said by counsel and parties, especially on the view, as to the location of the air jet. This is not defined in the patent. The change in the stock from fluid to pulp takes place by gradual and pretty even gradations in a travel of 8 to 10 feet in the web wire, and I do not think that any invention is involved in applying the air pressure at one point or another, although I quite understand that great differences in final results might be caused by differences in that respect. With the disclosures of the patent, anybody skilled in the art would be able to apply the air jet and air suction to a paper-making machine for the purpose specified. There seems to have been no demand for a In the seven years between the publication of the Kron patent and the filing of the Weston application, nobody in fact took this step or made such use of Kron's disclosure. As I have said, Weston was, on the evidence before me, the first to use air to form a hinge, as well as the first to form a hinge in the wet stock. The Kron patent was directed to a very different purpose from the patent in suit. Kron's object was to slit a relatively thick web into strips, which could be readily pulled apart and put into spinning machines. He was not at all concerned with the problem to which Weston's invention is directed. The fact that air under high pres As to the validity of the Weston patent: sure could be used successfully to slit a close 20 F.(2d) 183 On all the evidence, I find and rule that the Weston patent was not anticipated by Kron and is valid. ly compacted wet web furnishes no sugges- in a method of producing paper of the chartion, I think, that air might be used against acter mentioned by treating the web while a rather fluid stock to form a wide thin in the pulp state on the Fourdrinier or cylstripe. This view of the Kron patent elimi- inder with air pressure, either suction or nates most of the defendant's argument as to blast, whereby in the former a portion of the the prior art, and renders a detailed consid- web in a defined line is sucked away, and in eration of it unnecessary. The principles of the latter a portion is blown away or over law involved are too well settled to require onto adjacent portions of the web, thus rediscussion. moving a portion of the web and leaving a thinned strip or strips." Patent, p. 1, line 92 et seq. Substantially the same statement is repeated on page 2, lines 47-52. It will be noticed that the Weston process of forming the stripe makes no use of a drag. It relies solely on the air pressure, when that method is used, applied by a "blast" which blows aside a portion of the pulpy web. This implies a pressure sufficient to move the web by the momentum of the air; the wet pulp is displaced by the air. No means are provided or suggested for preventing the removed portion from flowing back into the stripe; the intention plainly being that the blast shall be applied at a point where the stock is too solid to flow. Otherwise the process would be inoperative. In the defendant's process a drag is used, which, as above stated, thins the fluid stock where the stripe is to be, and the stock is prevented from running back into the stripe by apparatus designed for that purpose and having no counterpart in the process of the patent. The final, and the most difficult, question is whether the defendant infringes. The defendant's machine does not have the nozzle of the Weston patent. Under the second slice bar, in line with the tube, a "drag" is attached, which is simply a flat piece of metal somewhat wider than the "hinge," and serves to reduce pro tanto the clearance at that point between the drag bar and the web. It plows away a certain amount of stock. A long tube extends lengthwise over the stock and partially formed pulp in the line of the drag for a distance of several feet. From this tube, sides or curtains hang down, which dip lightly into the stock for a certain distance. There are openings in the under side of the tube (provided with baffle plates to equalize the pressure), through which air is forced under very light pressure. The defendant contends that this drag "removes" the stock (see the claim in suit), that the air pressure operates simply to keep it from flowing back into the stripe which has been plowed by the drag, and that therefore the defendant's machine does not infringe the plaintiff's patent, because the material is not removed by the air pressure, as the claim specifies. Also, and much more basically, the defendant argues that its method of forming the stripe is not an improvement on adaptation of that of the patent, but is radically different. It is said that the patent ex plicitly specifies action of an air blast on "pulpy" stock; that liquid stock cannot be successfully treated by the method of the patent, because it would flow back into the depression caused by the jet; and that the defendant's method of reducing the thickness of the stock by a drag and restraining the liquid stock from flowing into the depression by superimposed light air pressure, confined by the curtains attached to the air tube and carried along for some distance until the stock has become sufficiently solid to hold its position, involves a different principle of operation. The real question is whether the defendant uses the idea of the patent. It says that "my [Weston's] invention consists broadly Weston could not patent the broad idea of using air pressure to make or to hold a thin stripe. He could only patent a specified process embodying that idea. Other inventors were free to use air to accomplish the same result, if they did not use it in the way described in the patent. The patent is a pioneer in its field; it covers variations, perhaps wide variations, in the method of working the process; but it does not cover a process which, in its essential characteristics, is not that which it describes. What step towards the defendant's process does the Weston patent suggest? I do not see that it suggests anything, except that air may be used on wet stock to form a stripe, a mere idea, and as such unpatentable. The defendant's method of accomplishing a result, viz. by the use of a drag and very light air pressure in connection with curtains dipping into the fluid stock for a certain distance ahead of the drag, seems to me to be a radically different solution of the problem from Weston's jet of air under relatively heavy pressure against pulpy stock. While it is true of the defendant's process that, if the drag be removed and the air pressure be largely increased, a commercial stripe can be made, that is not the way in which the de fendant worked the process, as I saw it. It used the drag to form the stripe in connection with a very light air pressure, entirely insufficient to make the stripe by itself. I understand that such is the defendant's commercial practice. On all the evidence I reach the conclusion that the defendant's process is not an infringement of the Weston patent. [1] On the night of December 22, 1923, government agents had under observation a certain three-story building at 474 North Centre street, Pottsville, Pa. There was a barn in the rear of the building, and the officers saw a touring car going into the barn; the door being closed after it. Looking into the barn, either through a window or through an opening of some kind in the building, they saw It follows that there must be a decree dis- four cases of bottles being loaded upon the missing the bill, with costs. UNITED STATES v. 18 BARRELS OF ALCOHOL, etc. car; the respondent here, Mausoleno, being one of the men engaged in the loading. The car then backed out and was promptly seized by the officers. They discovered in it 46 bottles of whisky, in four cases. then obtained a search warrant, returned and searched the barn, and discovered and seized They District Court, E. D. Pennsylvania. June 2, the alcohol, which is the subject of this pro 1927. 1. Intoxicating liquors 250-Evidence In forfeiture proceeding held to warrant finding that alcohol was possessed by permit holder for illegal disposal (National Prohibition Act, tit. 2, §§ 25, 33 [Comp. St. §§ 10138/2m, 101382t]). Evidence that prohibition agents, watching barn, saw touring car enter it, and, looking through an opening, saw cases unloaded into car, which, after seizure of car as it left barn, were found to contain whisky, and evidence that agents thereupon obtained search warrant, and on search of barn found 18 barrels of alcohol, held, under National Prohibition Act, tit. 2, §§ 25, 33 (Comp. St. §§ 101382m, 101381⁄2t), to warrant finding in forfeiture proceedings that such alcohol was kept for purpose of being disposed of in violation of National Prohibition Act, notwithstanding claimant, who help ed in loading cases of whisky, had basic permit to use alcohol in manufacture of fruit extracts; there being no evidence of how alcohol was acquired. 2. Intoxicating liquors 250-In forfeiture proceeding, question whether alcohol was intended for use in violating law is question of fact for court. In proceeding to forfeit alcohol seized, question whether it was intended for use in violation of law is a question of fact, to be de termined by the court on all circumstances appearing from the evidence. Libel by the United States to forfeit 18 barrels of alcohol, lately possessed by Anthony Mausoleno. Decree for plaintiff. George W. Coles, U. S. Atty., of Philadelphia, Pa. H. Horace Dawson, of Philadelphia, Pa., for defendant. KIRKPATRICK, District Judge. This is a proceeding by libel filed by the government to forfeit 18 barrels of alcohol. From the evidence the court finds the following facts: ceeding. The respondent offered in evidence a basic permit, class H, authorizing him to use alcohol for other than beverage purposes in the manufacture of certain fruit extracts for soft drinks. The permit was issued for 250 wine gallons per quarterly period, and the application, which was also offered, provided that "the maximum quantity of intoxicating liquor which will be produced or received during any quarterly period of the calendar year, plus the quantity on hand in the beginning of such period, will be 500 proof gallons of alcohol." The permit was dated May 27, 1921, and upon it was stamped the consent of the director to a change of address from the original address to 474 North Centre street, where the seizure took place. This stamped approval bore date February 21, 1922. The respondent did not testify, and offered no other evidence, although in his answer he asserts that he was discharged by a United States commissioner in a prosecution for illegal possession of the alcohol in question. mit of May 27, 1921, which apparently was The respondent argues that the basic perstill in force, together with the commissioner's approval of the change of address of his business of February 21, 1922, established the legality of his possession of the liquor at the time of the seizure. In connection with this position, it will be noted that there is no evidence as to how the alcohol found on the premises was acquired. The permit which the respondent offered is a basic permit, and does not give him the right to purchase alcohol. For that he must have a permit to purchase, and there is no evidence of any such permit. It would certainly not be argued that a permit to use alcohol for manufacturing soft drinks would give the holder |