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It was further maintained by the learned counsel of the complainant that even it were conceded that the American patent should be construed to terminate with the Canadian patent, the .extension of the latter under the provisions of the act operated to lengthen the term of the domestic patent to the period of 15 years from the date of the first issue of the foreign patent. The seventeenth section of the Canadian law enacts that
“Patents of invention issued by the patent-office shall be valid for a period of five, ten, or fifteen years, at the option of the applicant; but at or before the expiration of the said five or ten years, the holder thereof may obtain an extension of the patent for another period of five years, and after those second five years may again obtain a further extension for another period of five years, not in any case to exceed a total period of fifteen years in all.”
By virtue of these provisions the inventor, Bate, exercised his option, and first took out letters patent for five years. He afterwards procured extensions : first, on December 12, 1881, for five years from January 9, 1882; and, secondly, on December 13, 1881, for another five years, to be computed from the expiration of the prior extension, to-wit, from January 9, 1887.
What effect had these extensions on the life of the United States patent? Under the provisions of section 4887, must its terms be made to expire with the term of the foreign patent in force when the letters patent were granted, or do these extensions of the foreign patent save the domestic patent from lapsing when the term ends which was running at the grant of the domestic patent?
The question is an interesting one, and has already received examination and answer in other circuits. It first came before the late Justice Clifford; in the first circuit, in the case of Henry v. Providence Tool Co., decided in 1878, and reported in 14 O. G. 855. In that case the United States patent had been issued under the act of July 8, 1870, for the full term of 17 years, although at the time of the grant there was an English patent for the same invention in force, which had been granted to the patentee in Great Britain for 14 years from the fifteenth of November, 1860. The defendants claimed that the United States patent expired, by operation of law, at the same time with the English patent. The complainant, on the other hand, insisted that the language of the statute extended not only to the term of the foreign patent in force when the United States patent was obtained, but also to the term of any prolongation which the patentee might secure from the foreign government; and that, as he had obtained an extension of four years to the original term, the
owners of the domestic patent were entitled to add these four years to its life.
Judge Clifford refused to accede to such a construction of the law, but, on the contrary, held (1) that by the provisions of the act of July 8, 1870, congress never intended to extend the term of the domestic patent beyond the legal term secured to the foreign patentee when the domestic patent was granted; (2) that the prolongation of the English patent for a further term, after the expiration of the original, did not save the domestic patent from lapsing, under the statute. He was followed, in this construction of the section, by Judge Blatchford, of the second circuit, in 1879, in the case of Reissner v. Sharp, 16 Blatchf. 383. A patent had been granted by the United States, on the twentieth of October, 1874, for 17 years from that date. It appeared that, under the authority of the patentee, letters patent had been previously obtained in Canada, for the same invention, for five years from May 15, 1873. After careful consideration, the learned judge held that the United States patent expired on the fifteenth of May, 1878, although it appeared that in March, 1878, the Canadian patent had been extended for five years from May 15, 1878, and also for five years from the fifteenth of May, 1883.
There was an attempt made to distinguish the case from Henry v. Providence Tool Co., supra, (1) because the Canadian patent had not expired when the extension was granted; and (2) because the extension, by the terms of the Canadian law, was not a matter of favor, as it was under the English act. But the judge could not perceive that these considerations were of sufficient force to cause any other conclusion as to the plain meaning of the statute than that arrived at by Mr. Justice Clifford.
We are clearly of the opinion that the prayer of the petition should be granted and the injunction be dissolved. Whether the complainants' United States patent is void ab initio, because the term was not limited on its face to expire with the same time as the foreign patent, is not properly before the court on this motion. It was a defense to the suit, of which the defendants did not choose to avail them. selves, and a formal interlocutory decree entered in the case cannot be impeached in and by any such collateral proceeding.
Equity-Remedies Conversion of Public Property into Corporate
NEW ORLEANS O. MORRIS, U. S. Sup. Ct., Oct. Term, 1882. Appeal from the circuit court of the United States for the district of Louisiana. The opinion of the supreme court was delivered by Mr. Justice Miller, reversing the decree of the circuit court, with directions to overrule the plea and for further proceedings:
The first point raised in argunient here which requires our attention is that, whether the court below was right or wrong in its decision of the case on its merits, the bill must still be dismissed for want of equity, on the ground that there is ample remedy at law by a motion to the court to compel the marshal to release his levy on the stock, because not liable to be sold on the execution. It will be observed that no such objection was made to the bill in the court below, and although one of the defendants filed a general demurrer to the bill which might have raised it, he afterwards withdrew his demurrer, and joined in the plea on which the case was decided. This plea was a defense on the merits of the case, and was to be held good or bad on precisely the same principles whether pleaded to a declaration at law or a bill in chancery. We should under such circumstances have great hesitation to permit the party who bad, by tendering this issue, waived the question of the special jurisdiction of the court in equity, to raise that point for the first time on appeal. Notwithstanding, that in the ordinary case of a wrongful levy of an execution on property not subject to be seized under it, the proper remedy is by motion to the court to have the levy discharged, we think that this bill shows other sufficient grounds for the equitable jurisdiction of the court. A statute of a state legislature which, in the act authorizing a city to convert its ownership of a large and valuable property, held for the use of the public, into the shares of a joint-stock corporation, declares that these shares shall be exempt from judicial sale for the debts of the city, is an impairment of the obligation of existing contracts within the meaning of the constitution. City water-works are held for public use, and are not liable to execution for judgments against the city.
Cases cited in the opinion: Van Norden v. Morton, 99 U. S. 378; Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608.
Legislation-State Statute-Judicial Question.
AMOSKEAG NAT. BANK 0. TOWN OF OTTAWA; Post v. KENDALL CO.; U. S. Sup. Ct., Oct. Term, 1881. In error to the circuit court of the United States for the northern district of Illinois. The decision of the supreme court was rendered on May 8, 1882. Mr. Justice Gray delivered the opinion of the court affirming the judgment.
Where the facts of the case do not essentially differ from a case which was before this court at a prior term, the principles therein affirmed must control the decision: First. By the law of the state of Illinois, as often declared by the supreme court of that state, before as well as after the execution of the bonds in suit, the provisions of the constitution of 1848, requiring each house of the legislature to keep and publish a journal of its proceedings, and, on the
final passage of all bills, to take the vote by ayes and noes, and, ordaining that no bill shall become a law without the concurrence of a majority of all the members elect of each house, are not merely directory; but if the journals, being produced or proved, fail to show that an act has been passed in the mode prescribed by the constitution, the presumption of its validity, arising from the signatures of the presiding officer and of the executive, is overthrown, and the act is void. Second. Whether a seeming act of the legislature is or is not a law is a judicial questiov to be determined by the court, and not a question of fact to be tried by a jury. Third. The construction uniformly given by the constitution of a state by its highest court is binding on the courts of the United States as a rule of decision. Fourth. An act of the legislature of a state, which has been held by its highest court not to be a statute of the state, because never passed as its constitution requires, cannot be held by the courts of the United States, upon the same evidence, to be a law of the state. Fifth. That which is not a law can give no validity to bonds purporting to be issued under it, even in the hands of those who take them for value, and in the belief that they have been lawfully issued.
It was accordingly held that the act of the general assembly of Illinois, under which the bonds in suit were issued, having been adjudged by the supreme court of that state, upon proof that the journal did not show it to have been enacted in conformity with the requirements of the constitution, to have never become a law, and to have conferred no power, although referred to in later statutes as an existing law, those decisions must govern the action of the courts of the United States. The copies of the journals, certified by the secretary of state, and the printed journals, published in obedience to law, are both competent evidence of the proceedings in the legislature. For these reasons the act of February, 1857, under which all the bonds in suit purport to have been issued, must be held to be of no force or effect, and the plaintiffs can maintain no action on the bonds.
Cases cited in the opinion: Ryan v. Lynch, 68 IlI. 160; Miller v. Goodwin, 70 Ill. 659; Elmwood v. Marcy, 92 U. S. 283; East Oakland v. Skinner, 94 U. S. 255; Dunnovan v. Green, 57 II). 63; Force v. Batavia, 61 Ill. 99; Illinois Cent. R. Co. v. Wren, 43 111. 77; Bedard v. Hall, 44 Ill. 91 ; Grob v. Cushman, 45 Ill. 119; People v. De Wolf, 62 11. 253; Benz v. Weber, 81 Ill. 288; People v. Cambell, 3 Gilman, 466; Prescott v. Trustees, etc., 19 Ill. 324; Happel v. Brethauer, 70 Il. 166; Watkins v. Holman, 16 Pet. 25; Bryan v. Forsyth, 19 How. 334; Gregg v. Forsyth, 24 How. 179.
DARST v. CITY OF PEORIA and another.
CLARK V. CITY OF PEORIA and another.
(Circuit Court, N. D. Illinois. 1882.)
1. REMOVAL OF CAUSE--PREJUDICE AND LOCAL INFLUENCE-- TIME OF APPLICA
An application for the removal of a cause under the act of 1867, (Rev. St. ♡ 639, subd. 3,) made after appeal to the state supreme court, where the decree of the lower court is affirmed, and the cause remanded with instructions to enter a final decree of conformity with the judgment of the supreme court, is too
late. 2. SAME--WHO MAY REMOVE--CITIZENSHIP.
A citizen of an Indian territory, not being a citizen of a state, cannot remove a cause into the circuit court from a state court under the act of 1867, (Rev. St. ♡ 639, subd. 3.)
Bill for Partition. Cross-bill.
BLODGETT, D. J. This case was originally commenced in the Peoria circuit court, and on the twenty-first day of June, 1882, Ben Clark, one of the defendants in the original bill and complainant in the cross-bill, filed his petition in the Peoria circuit court for the removal of the cause to this court upon the ground that he, Clark, is, as stated in the petition, a citizen and resident of the Indian Territory, and that he has good reason to believe, and does believe, that from prejudice and local influence he will not be able to obtain justice in said state court. The state court refused to make the order of removal, whereupon Clark brought a transcript of the record here and asked this court to take jurisdiction, and for leave to dockėt the cause. This application was resisted by the city of Peoria, the principal defendant. From the record which Clark asks leave to file in the case of some exhibits read on the part of the city of Peoria, the facts appear that the original bill was filed in the state court on the twentieth of August, 1880, for the purpose of obtaining a partition of a tract of land in the city of Peoria, one-fourth of which is claimed by Darst, one-fourth by Clark, and one-half by the city of Peoria. On the seventh of October, 1880, the defendant Ben Clark appeared and answered the original bill, setting up title in fee to an undivided onefourth of the land, and filed his cross-bill; and on the eighth of December, 1880, the city of Peoria made answers to the original bill and cross-bill, claiming to own the entire estate, and denying that Clark or Darst had any interest in the premises. Replications were filed