Opinion of the Court.

such an apparatus was in practical use by Meinhard a year or more prior to the date of the Gordon invention. This testimony is sought to be impeached or contradicted by the appellant, but after a careful examination thereof, we think he fails to break down or discredit the proof by which the anticipating device is established.

The voluminous testimony on this question of fact has been carefully examined, and, without reviewing it in detail, we concur with the court below in thinking that it does establish, clearly and satisfactorily, the existence of the prior Meinhard apparatus, which constituted an anticipation of the Gordon invention.

Again, in a stipulation entered into between the parties, it was agreed as follows:

"It is hereby stipulated by and between the parties hereto that prior to the date of the invention by Mr. Charles Gordon of the improvement described, claimed in letters patent No. or any of the said improvements, there had been in public use in the city of St. Louis, Missouri, and possibly elsewhere, a device or apparatus for drawing and cooling beer, in which were upper and lower ice-boxes, beer-supply pipes, beer kegs, air pipes, air pumps, and faucets, said beer-supply pipes being led from the lower to the upper ice-box in metallic pipes at least four inches in diameter which was filled with sand or gravel; said metallic pipe running from the upper to the lower ice-box; said metallic pipe being closed at its lower end, where it joined the lower ice-box; and below the sand or gravel by a wooden plug or disk, through which the beersupply pipes pass, this plug or disk forming a bottom for the pipe for the purpose of holding the gravel in the pipe. The said apparatus was in all respects similar to the Gordon device, except the difference hereinbefore stated, it being an apparatus similar to the device shown on page 7 of the 'Cleveland circular,' which is offered in evidence by the defendants, and the same is received and marked Defendants' Exhibit Cleveland Circular.""

This St. Louis apparatus had a beer-supply pipe, connecting the upper ice-box and the barrel or keg in the lower chamber,

Opinion of the Court.

enclosed in a metallic case, four inches in diameter, which was filled with sand or gravel, through which the drippings from the upper ice-box percolated. The metallic case, thus filled, was designed for cooling the beer that remained in the supply pipe by means of the drippings from the upper ice-box, which flowed down through the same, and to some extent it accomplished the desired purpose. The principal was well known at that time, and at the date of the Gordon invention, that cold air from an upper ice-box or chamber would descend through an enclosed connection to a lower chamber. The Gordon invention, by means of an open air chamber surrounding the supply pipe, sought to put this principle to a practical purpose. He dispensed with the sand or gravel, such as filled the metallic case around the supply pipe in the St. Louis apparatus, and left that space open, so that the cold air, as well as the drippings from the upper ice-box, might be conducted through the same. In other words, he simply emptied the metallic case of the St. Louis apparatus of its sand or gravel so as to leave that metallic case open, and allow the cold air from the upper box to flow down through the same. This change in the apparatus does not rise to the dignity of invention such as would entitle him to a patent. The purpose to be accomplished was not patentable, and the particular means devised to secure that purpose did not involve invention. Carver v. Hyde, 16 Pet. 513, 519; Le Roy v. Tatham, 14 How. 156; Corning v. Burden, 15 How. 252; Barr V. Duryee, 1 Wall. 531; Fuller v. Yentzer, 94 U. S. 288; Knapp v. Morss, ante, 221.

We are, therefore, of opinion that the Gordon patent is wanting in patentable novelty, and that it was anticipated. The judgment of the court below, in each case, is accordingly

Affirmed.

Statement of the Case.

In re LENNON.

APPEAL FROM THE CIRCUIT COURT OF THE

UNITED STATES FOR

THE NORTHERN DISTRICT OF OHIO.

No. 925. Argued November 17, 1893. - Decided November 27, 1893.

The Toledo and Ann Arbor Railway Company, which connected with the Michigan Southern Railway in the carrying on of interstate commerce, filed a bill in the Circuit Court to restrain the Michigan Southern from refusing to receive its cars used in such commerce, and discriminating against it, on the ground that it employed engineers who were not members of the Brotherhood of Locomotive Engineers. An injunction was issued, and a few days later the Lake Shore applied for an order of attachment against some of its employés who had refused to haul cars and perform service for them, thus hindering them from complying with the order of the court in respect to the Toledo and Ann Arbor Company. A rule to show cause was issued, and such proceedings had thereunder that one of the employés was adjudged guilty of contempt, was fined, and was ordered to be committed until payment of the fine. This employé applied to the Circuit Court for a writ of habeas corpus. The petition, after setting the facts forth, claimed that the Circuit Court had no jurisdiction of the cause in which the original order of injunction had been issued, for reasons stated, and further, that it had no jurisdiction of the petitioner's person, because he was no party to that suit, and had not been served with process. The application was denied and the petition dismissed, from which judgment the petitioner appealed to this court.

Held,

(1) That while the general right of appeal from the judgments of Circuit Courts on habeas corpus directly to this court is taken away by the act of March 3, 1891, 26 Stat. 826, c. 517, nevertheless, that right still exists in the cases designated in section 5 of that act;

(2) That the jurisdiction of the Circuit Court over the petition for habeas corpus was not in issue, and was not decided adversely to the petitioner, and this appeal therefore did not come within the first of the classes named in section 5 of the act of 1891;

(3) That the construction or application of the Constitution was not involved, in the sense of the statute, and that the petition did not proceed on that theory, but on the ground of want of jurisdiction in the prior case over the subject-matter, and in this case over the person of the petitioner;

(4) That the appeal must be dismissed.

ON March 11, 1893, the Toledo, Ann Arbor and North Michigan Railway Company filed its bill of complaint in the

Statement of the Case.

Circuit Court of the United States for the Northern District of Ohio against the Lake Shore and Michigan Southern Railway Company and other railroad companies, which connected with complainant in the carrying on of interstate commerce, charging that it was the duty of defendants under the act of Congress of February 4, 1888, and the amendments thereto, regulating commerce between the States, to afford equal and reasonable facilities for the interchange of traffic with complainant, and to forward cars and freight in the ordinary transaction of its business without discrimination. The bill further averred that the defendant companies had threatened to refuse to receive from complainant cars offered by it, and to deliver to complainant cars billed over its road for transportation to their destination, and that, because complainant had employed as locomotive engineers men who were not members of the Brotherhood of Locomotive Engineers, those in the employment of defendants had refused to handle cars to be interchanged with complainant's railroad; that the defendant companies offered to other companies free interchange of traffic, but refused to transact business with complainant, thereby discriminating illegally against it; and complainant charged that irreparable damage would result if defendants carried out their threats, and prayed for an injunction.

On March 11 an injunction was granted, restraining, among others, the Lake Shore and Michigan Southern Company, its officers, servants, and employés, from refusing to offer and extend to complainant equal facilities for the interchange of traffic on interstate business, and to receive from that company cars billed from points in one State to points in another State, offered by complainant to defendant companies; and to deliver in like manner to complainant cars billed over complainant's line from points in one State to points in other States. March 18, the Lake Shore and Michigan Southern Company filed its application for an order of attachment against certain engineers and firemen in its service, and among them James Lennon, as being in contempt of the restraining order by refusing to haul cars and perform

Statement of the Case.

service, and thereby preventing compliance with that order by the company. A rule to show cause was issued, and such proceedings were thereafter had that Lennon was adjudged guilty of contempt, and ordered to pay a fine of fifty dollars and costs, and stand committed until they should be paid, and, upon his refusal, was committed to the custody of the United States marshal for the Northern District of Ohio, whereupon an application for a writ of habeas corpus to release him from such custody was made to the Circuit Court for the Northern District of Ohio.

The petition represented that Lennon was unlawfully held in custody and restrained of his liberty in violation of the Constitution and laws of the United States, under the order of the Circuit Court, which order was made in the cause heretofore referred to, and copies of the bill, the restraining order, the application of the railway company for the attachment, the order to show cause, the order in the matter of contempt, and the evidence on the application for the attachment, in that cause, were annexed as exhibits. The petition then. proceeded thus:

"Your petitioner further states and alleges, as he is advised, that the said Circuit Court had no jurisdiction or lawful authority to cause the arrest of your petitioner nor to proceed against him in manner as aforesaid, and that the said pretended order and judgment, whereby your petitioner was committed to the custody of the said marshal and whereby he is held in custody of the said marshal and imprisoned and restrained of his liberty, were and are wholly without authority of law and void.

"Said order was issued in a suit whereof the said Circuit Court had no jurisdiction, because the complainant and one of the defendants were at the time of the filing of the said bill of complaint and ever since have been citizens of the same State, to wit, the State of Michigan, and which did not arise under the Constitution or laws of the United States.

"Said Circuit Court had no jurisdiction of the person of your petitioner, because he was not a party to the said suit, nor was he served with any process of subpoena notifying him