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11 F.(20) 386 a remedy at law afforded him by a statute of ment to the Constitution. On the other hand, Louisiana, the case might properly be trans- if the proceedings are to enforce an unconferred to the law side of the court, and there stitutional statute or ordinance, the persons be proceeded with under the terms of equity seeking to enforce it on behalf of the state rule No. 22, since the jurisdiction here is are not considered as representing the state, sought upon a diversity of citizenship and an but act as individual wrongdoers, and a suit alleged federal question, except for the fact to enjoin them is therefore held not to be a that United States courts have no jurisdic- suit against the state. Central Consumers' tion in original cases of mandamus. 8 Co. of New Jersey v. Austin (D. C.) 238 F. Encyc. U. S. Supreme Court Reports, 20. 619. (8] The second prayer of the bill is in no "If the statute is conceded to be valid, better case.

The prayer amounts to no more a federal court of equity has no more right to than that this court, as a court of equity, may interfere with the enforcement of the state's competently intervene to restrain threatened criminal laws by its law officers, through its criminal proceedings for the alleged viola- courts, because of anticipated errors in the tions of a statute alleged to be valid and con- construction of the statute by the judge, than stitutional, upon the ground that such pro- it would have to interfere because of anticiceedings, by a misapplication of the statute, pated errors in the decision of facts by a may work an injury to complainant's pro- jury.” Id. See, also, Hoffman v. McElliposed business. This the courts of the Unit- gott, 259 F. 525, 170 C. C. A. 487. ed States are forbidden to do. Section 265 The contention of complainant that his of the Judicial Code (Comp. St. § 1242) deprivation of the permit amounts to a depspecifically prohibits injunctions to stay pro- rivation of his property without due process ceedings in state courts: “The writ of in- of law, and denies him the equal protection junction shall not be granted by any court of of law, does not sufficiently show that the rethe United States to stay proceedings in any fusal of a permit made any distinction becourt of a state, except in cases where such tween himself and any other persons who injunction may be authorized by any law re- have been so denied since the adoption of the lating to proceedings in bankruptcy.” The commissioner's policy or rule. Should we exceptional cases in which a court of equity concede that the denial of this permit is justified in interposing its restraining arm amounted to a deprivation of property, it to prevent criminal prosecution are stated in would not follow that the rule or policy of . Re Sawyer, 8 S. Ct. 482, 124 U. S. 200, 31 the commissioner was contrary to the FourL. Ed. 402, Davis & Farnum v. Los Angeles, teenth Amendment. In Grainger et al. v. 23 S. Ct. 498, 189 U. S. 207, 47 L. Ed. 778, Douglas Park Jockey Club (C. C. A. 6th) and Dobbins v. Los Angeles, 25 S. Ct. 18, 195

148 F. 513, 78 C. C. A. 199, 8 Ann. Cas. 997, U. S. 223, 49 L. Ed. 169.

it was held that the constitutionality of a [9] From these decisions it appears well set

statute must be determined by its provisions tled that, in cases only where property rights and not by the manner in which it is in fact would be destroyed, criminal proceedings un

administered. der a void law or an ordinance may be reach

a ed and controlled by a court of equity. In [11–13] A statute or ordinance depriving this case these necessary elements are not

one of his liberty or property is not in violapresent in the bill, and the sole injury or loss tion of the Fourteenth Amendment merely to the complainant would be such only as

because of such deprivation; nor is every might arise from his arrest and prosecution. classification made under the police power of His bill clearly shows that he anticipates only

a state voidable therefor. The test is that, to some action by a state officer under a penal be valid, they rest upon some reasonable pubstatute, by reason of a wrongful construction lic policy and some real and substantial re

lation to the object sought to be accomplish[10] If the state officers sought to be en- ed; and every presumption is in favor of the joined are proceeding under a valid statute rightful exercise of its power by the Legisof the state, they represent the state, and a lature or officer acting under its authority. suit to enjoin them is a suit against the state, From these considerations it follows that within the meaning of the Eleventh Amend- the complainant's bill must be dismissed.

of same.

LUELLEN V. BALDWIN LOCOMOTIVE right, title, and interest in and to the letters WORKS,

patent, together with all rights of action, (District Court, E. D. Pennsylvania. March 6, claims, and demands for past infringement, 1926.)

to Luellen Railway Artillery, Incorporated. No. 2771.

Thereupon, on November 27, 1923, the Luel

len Railway Artillery, Incorporated, with 1. Courts 449(3)-Remedy for patentin, leave of court, filed a bill in the nature of a fringement in manufacturing goods for United States after July 1, 1918, is by suit against supplemental bill, setting out the issuing of United States in Court of Claims (Act July 1, the patent, the acts of infringement com1918, amending Act June 25, 1910 [Comp. plained of, and the assignment from LuelSt. Ann. Supp. 1919, $ 9465]).

len, to which the defendant filed its answer Remedy for patent infringement in manu

January 4, 1924. facturing goods for United States after passage of Act July 1, 1918, amending Act June 25, The purpose of the invention, as set 1910 (Comp. St. Ann. Supp. 1919, § 9465), is forth in the specification, may be briefly by suit against United States in Court of stated to be a combination providing a means Claims.

by which heavy armament, consisting of 2. Patents Om 168(2)—Rule of strict construc- guns of long range and large caliber, may be

tion held applicable to claims allowed by Pato mobilized by mounting them upon cars adaptent Office after rejection of broad claims acquiesced in by patentee.

ed for transportation on railroads, and by Where patentee did not insist on broad providing, at any desired point or points upclaims of patent, but acquiesced in their rejec

on the railroads to be used for the purpose, tion by Patent Office, claims accepted come

gun emplacements constructed of sufficient within rule of strict construction of such limi- strength at and alongside of the roadbeds tations.

and tracks, to anchor the gun mount up3. Patents en 177--Claims of patent for combl.

on such prearranged emplacements, so that nation of elements should be limited to elements specified.

the gun may be fired from such emplace

ments, so that the shock and force of recoil Where patentee specifies any element as entering into patented combination, he makes in firing will be communicated to the earth such element material to combination, and through the fixed emplacement, without court cannot declare it immaterial, and hence strain upon the trucks or wheels of the claims of patent for combination of elements

transporting car. should be restricted to elements specified.

A further purpose of the patent, in order 4. Patents 328.

to provide that the highest degree of mobilDawson and Luellen patent, No. 1,244,431, ity of the mounted gun may be retained at claims 23, 28, 29, 30, 35, 37, and 42, for a system of mobile armament, held not infringed. all times, is thus expressed in the specifica

tion: "With our invention it will be seen In Equity. Patent infringement suit by that guns of the heaviest caliber may be Lawrence W. Luellen against the Baldwin transported from place to place, and may be Locomotive Works. Bill dismissed.

mounted in firing position in such a way Clinton W. Frontz, of Philadelphia, Pa., shocks of recoil are fully taken care of, and

that they are adequately supported, and the and Lindley M. Garrison and Theodore S. Kenyon, both of New York City, for plain- that, at the same time, this may be done tiff.

without removing the guns or gun mounts Francis B. Bracken, of Philadelphia, from the running gear, or displacing the Pa., and William A. Redding and Worthing

same from the tracks or roadways. In this ton Campbell, both of New York City, for way the highest degree of mobility is redefendant.

tained at all times, and the guns, while firm.

ly supported during firing, may be almost in. THOMPSON, District Judge. This is stantly shifted from one location to another a suit for infringement of letters patent No. as conditions may require. Thus no delay 1,244,431, granted October 23, 1917, for a is incurred in getting the guns in condition system of mobile armament, upon applica- to fire, and at the same time, in case of the tion filed November 23, 1915, by C. F. Dav- necessity for retreat, the guns can be quickly son and L. W. Luellen. Before the issuance withdrawn to positions of safety. This is of the patent, Dawson executed an assign- a very important consideration, as it perment of all his rights in the patent to Luel- mits the artillery to be used effectually up to len. The bill was filed June 21, 1923, and the last possible moment, without danger after answer was filed, on October 10, 1923, of its loss.” Luellen executed an assignment of all his In order that this high degree of mobil

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11 F.(20) 390 ity may be retained, the specification and permanent fixed fortification. When the gun drawings of the patent clearly show that the car of this invention is secured to the founconception in the minds of the inventors dation, its weight is entirely removed from was that the car, with the gun mount and the rails and from the running gear. It regun mounted thereon, should remain intact, tains its transportation position with respect without disengagement from the frame or to the rails and running gear, so that it may body of the car of its trucks or wheels, and readily resume its mobility, but it is otherthat the running gear of the car should be wise independent of them. No part or comleft without displacement from the railway ponent of the firing shocks is transmitted tracks. The gun is mounted, in the drawings through the running gear to the earth. On and specification, upon a turntable support the other hand, when the weight of the gun ed by a platform in the shape of a cradle, car has been returned to the running gear upon the central and depressed portion of and tracks, and the supports between the car which the gun rests upon its turntable, and and the foundation removed, the car is freely the extensions of the cradle-shaped platforms mobile as a railroad car, and is independon the higher elevation are supported, at ei- ent of the foundation. It may then be movther end, upon the trucks. A pair of side ed to a new firing position or transported beams, forming part of this platform con

wherever desired." struction, “situated in parallel relation at The emplacement shown in the drawings the sides of the carriage, are supported by and described in the specification is conthe upper ends of knuckle joints disposed at structed by filling a hollow in the roadbed opposite ends of the vehicle; the lower beneath the track with concrete, in which are arms of the knuckle joints being support- embedded the ties for the rails, and also emed by pivotal means on the trucks." The bedded therein in lateral position are lpurpose of the knuckle joints is, through beams, outside of and parallel with the rails, their operation, when bent at the joint, to the upper channels being vacant, and free to lower the platform carrying the gun, so that receive the rectangular framework of the the depressed part of the side beams of the mobile carriage when the latter is lowered inplatform will come into engagement with to supporting position, the sides of the carand rest upon I-beams embedded in the riage being provided with a series of lateralconcrete of the previously constructed em- ly extending bolt brackets, with which placement, while the elevated extensions of swiveled bolts, pivoted to an anchorage sethe platform continue to rest at each end cured alongside of the outer side of the Iupon the trucks, and the running gear upon beams, are arranged to be swung upwardly the railroad track.

into position within the slots of the bolt As stated in the plaintiff's brief, the in- brackets. The swiveled bolts are provided vention involves the combination of two es- with nuts, and, when they are engaged with sential elements :

the brackets and the nuts tightened, the plat“(1) Supporting means or foundations form, with the gun mounted thereon, is adapted to be embedded in the earth under anchored in position. or at the sides of the track at the firing No novelty is claimed in any of the conpoint; and (2) a car carrying heavy ord- stituent elements of the combination, nor in nance, and adapted to co-operate with the any of the various parts of the mechanism supporting means while still in transporta- of its construction. With this brief outline tion position over the track, in such a way of the system of mobile armament, as dethat the car is anchored in fixed position and scribed in the specification and shown in the the shocks incident to firing are transmitted drawings of the patent in suit, we will state to the earth through the supporting means, the acts of the defendant which, it is claimed, and not through the car running gear. constitute infringement.

“Thus the invention provides a gun car In the fall of 1917, after the United that is freely movable from point to point States had entered the World War, it was over ordinary railroads, but which, by easy known that a great drive on the part of manipulation and without the necessity of the German army was contemplated for the removing the gun from the car, or of remov- following year; that preparations were being either from position over the track, may ing made to that end; that the Germans were be anchored in fixed and rigid relation to equipped with heavy artillery of large caliber supporting means or foundations embedded and long range, which would be employed in in the ground, so that in such position the the drive, while the Allies were not sufficientgun is as solidly emplaced as if it were in a ly equipped with heavy guns of large caliber to meet the expected German offensive. The the United States in the Court of Claims. United States government, having a number Foundation Co. v. Underpinning & Foundaof large caliber, long-range, naval guns, that tion Co. (D. C.) 256 F. 374; Floyd Smith had been constructed for use upon battle- Aerial Equipment Co. v. Irving Air Chute ships, which were not yet completed and Co. (D. C.) 276 F. 834. None of the parts could not be completed in time to use the manufactured by the defendant were, in guns at sea, determined to take up at once themselves, patentable. They were all known the problem of using this available arma- and practiced in the prior art. ment, and thus, by the use of these guns up- The gun mount and its foundation, as set on land, to place at the disposal of the Allies up and delivered to the United States under guns of such power and range as would fur- the contract, consist of a steel girder which, nish the Allies with instrumentalities capable with some slight modification in form, is of use as a counter offensive for defense similar to that used in mounting heavy guns against the German attack.

on battleships, but is sufficiently longer than After consideration of various plans of- the navy gun mount to allow for mounting fered, and after rejection by the War De- upon railroad trucks. The girder is conpartment of the use of the patent in suit, structed of two parallel steel plate girders, authority was given and plans ordered to be secured together by transverse braces or prepared for the utilization of these guns struts. This girder is carried upon two mounted upon railway cars, to be fired from transverse beams, each supported by and fixed emplacements, upon which the guns secured to a 12-wheel truck, one at either could be placed in position for effective fir- end of the girder. Upon this girder the gun ing from points on the railways in France, is mounted upon its slide and trunnions. To and be readily removable from place to the under part of the side plates or girders place, so that they would not suffer the is secured a transom plate with a depending disadvantage of guns in fortifications up- pintel. The beams supporting the girder upon fixed emplacements. After preparation on the car trucks are detachably secured upof the plans, contracts were entered into on the trucks, so that the girder may be with the defendant, the Baldwin Locomotive raised by means of jacks from the trucks, Works, for the construction of parts to be when placed in proper position over the emused with parts supplied by the Navy De- placement or foundation. partment.

The foundation parts manufactured by In accordance with these contracts, the de- the defendant consist of heavy timber and fendant constructed for the United States structural steel members, adapted to be government five gun cars, consisting of rail. placed in a pit excavated under the roadbed way trucks and steel girders, constituting and extending beyond the rails on either side the gun mounts and the steel parts for 12 thereof. The pit is relatively shallow at pit emplacements and foundation lifting the forward end and deep at the rear end, so jacks. The heavy ordnance, to be mounted as to afford space for the breech of the gun upon the cars, consisting of 14-inch caliber when fired from high elevation and for its guns, and all strictly ordnance parts, were

recoil. The timbers support two structural supplied to the defendant by the government.

steel side members, consisting of plates formThese gun cars, with the foundation parts,

ing the sides of the pit. These side members and the guns and ordnance parts supplied

are united and strengthened by transverse by the United States, were delivered to the

members at the rear or deep end of the

pit. A transom bed plate is provided, congovernment prior to July 1, 1918, and are

sisting of a large casting, which extends the only structures manufactured by the defendant which need be taken under consid- bers. It is held in position by lugs, which

across the pit and rests upon the side memeration in this suit.

engage in slots provided in each side member. [1] There can be no question that the gun The transom bed plate is provided with a mounts and foundations, or parts thereof socket into which the depending pintel of the that were manufactured by the defendant, transom plate fits. The girder carrying the after the passage of the Act of July 1, 1918, gun is raised from the trucks, when the gun amending the Act of June 25, 1910 (chapter mount is in proper position over the pit, 114, 40 U. S. Statutes at Lage, 705 [Comp. for the pintel, when the transom bed plate St. Ann. Supp. 1919, § 9165]), were man is raised by means of screws bearing upon factured for the United States, and therefore the top of the side members of the foundathe plaintiff's remedy for infringement by tion, to be received by and fit into the socket manufacture after that date is by suit against in the transom bed plate.

11 F.(20) 390 The purpose of the foundation is to act bearing on the side plates of the pit, so as a support for the gun mount when it is in that the pintel in the transom casting enfixed position, to hold it in position over the gages with the socket of the bed plate. pit, to take the stress of the firing and recoil When the gun is in action, the forward jacks of the gun, and to afford space for the breech are removed, and the rear end of the gun of the gun and its recoil. In order to op- mount is additionally supported by the rear eratively combine the gun mount with the pit jacks. The gun, with its mount, is thus enand its foundation, it is necessary to remove tirely detached from the trucks of the car, 50 much of the beams supporting the rails the tracks over the pit have been removed, forming the track as extend across the pit, and the trucks are entirely disassembled from and as to so much of the pit as is covered by the body—that is, the carrying girder of the the transom bed plate the latter is provided car. with grooves in continuance with the rails, Under the contract with the government, so that the forward truck of the gun car all structural ordnance parts, such as guncan be moved across the pit to place the breech mechanism, slide complete, deck lugs, mount in position after the transom bed elevating gear, transom castings, all elevatplate has been secured to the steel side mem- ing gear details, gun-loading devices, consistbers of the foundation before the removal ing of shell car and trolley hoist, and the of the rail beam and rails.

sighting devices, were furnished by the govThe removal of the rails and their beams ernment; all other parts of the gun car by is necessary, in order to permit the breech the contractor. The parts furnished by the of the gun, when it is elevated over 15 de- defendant were the main girder, with its acgrees, to extend into the pit and to provide cessories, consisting of the forward and rear space for its recoil of 44 inches when fired, jacking beams, the forward and rear trucks, as the bottom of the gun carriage, whether with the truck girders, and the foundation on or off the trucks, is brought into such with its jacks and foundation equipment. close proximity to the roadbed that it can. It is not disputed, therefore, that neither not be fired at an elevation greater than the foundation parts, supplied by the de15 degrees, which must be attained when the fendant, which excluded the transom bed target is at a distance that cannot be reached plate, without which the foundation would at that elevation. It is also necessary to have not be complete, would be operable as a sufficient lateral space to allow for the train- foundation, nor would the gun mount be ing of the gun at an angle of 21/2 degrees operable without the parts supplied by the either way from its normal position. The government. The contract provides: “The object of the foundation is not only to pro- contractor will also be required to erect and vide a support for the girder carrying the assemble on each gun car the ordnance magun, when in fixed position, and to hold it terial which will be manufactured and supin position over the pit, but to take the thrust plied to him by the government.” of the gun through the transom and transom In this construction the plaintiff claims bed plate, and thence through the supporting infringement of the claims in suit, in that structural steel members and timbers in the the defendant's pit foundation is “the suppit to the earth.

porting means or foundation adapted to be It will be seen again that, when firing the embodied in the earth under or at the sides gun in its anchored position, the width of of the track at the firing point,” and the dethe pit being greater than the distance be- fendant's gun car is “a car carrying heavy tween the rails, it is necessary for the rails to ordnance and adapted to co-operate with the be removed. When the gun is fired at an supporting means while still in transportaelevation of 15 degrees or less, it may be tion position over the track in such a way used as a sliding mount upon the rails, so that the car is anchored in fixed position and that the pit and foundation are no part of the shocks incident to firing are transmitted a combination necessary when it is intended to the earth through the supporting means to fire at that elevation or less. In order to and not through the car running gear." demount the gun girder from the trucks, the

The defense of noninfringement was set defendant's construction supplies jacks of up, upon the ground that the claims upon suficient strength to support at each end of which the plaintiff relies, Nos. 23, 28, 29, the girder, by means of the cross-girder, the 30, 35, 37, and 42 of the patent in suit, must weight of the gun and its mount. By means be limited and restricted, because of the of these jacks, the gun is raised from its prior art and the history of the claims alposition upon the trucks, and the transom lowed in the Patent Office, as shown by the bed plate is raised by means of the screws file wrapper, in such manner that the de

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