March 15, 1926, for both of the years 1920 and 1921. With respect to the year 1920 the statute provided that the amount of tax due should be assessed "within five years after the return was due or was made," and as to the year 1921 the law had been so amended as to provide that the assessment should be "within four years after the return was filed."

The question was whether the assessments were too late under the statutes by which they were governed.

In computing the time in which the assessments could be made, the court excluded the date of March 15th, upon which the returns were filed, and held that the Commissioner was authorized to make the assessments on March 15, 1926.

Many other cases are cited by appellant in support of his position, that in computing the time after a given date or event the first day should be excluded.

This court so held in the case of United States v. Hurlburt & Sons, 11 Ct. Cust. Appls. 24, T. D. 38,638. We there quoted from the case of Sheets v. Selden, 69 U. S. 177, as follows:

The general current of the modern authorities on the interpretation of contracts, and also of statutes, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period. "When the period allowed for doing an act," says Mr. Chief Justice Bronson, "is to be reckoned from the making of a contract, or the happening of any other event, the day on which the event happened may be regarded as an entirety, or a point of time; and so be excluded from the computation." [Italics supplied.]

In said case we also quoted with approval the following from Lewis' Sutherland Statutory Construction, sec. 185, as follows:

The rule is so generally recognized to exclude the first, or terminus a quo, and to include the last, or terminus ad quem, that it requires no particular words for its application. The terminus a quo, so far as it is descriptive of a period of time, is coincident with the day, or day of the act, from which the computation is to be made; that day is indivisible; the period to be computed is another and subsequent period, which begins when the first period is completed. [Italics supplied.]

It will be observed that in both of the above quotations, while it is stated that in the computation of time the first day is excluded, it is also stated that the last day is included.

Under appellant's own theory the last day or day of expiration of the one year was August 5, 1940, and in determining the day upon which the act here in question went into effect, it would seem, under the authorities above quoted, that the inclusion of the last day or August 5, 1940, would result in the Amendatory Act being effective upon that date. Appellant quotes from Lewis' Sutherland Statutory Construction (Second Edition) sec. 184, as follows:

The rule now supported by nearly all of the modern cases is that the time should be computed by excluding the day or the day of the event from which the time is to be computed and including the last day of the number constituting the specified period. Thus, if an act is to take effect in thirty days from and after its passage, passing on the 1st day of March, it would go into operation on the 31st day of that month. It would commence to operate at the first moment of the last day of the thirty, ascertained by adding that number to the number of the date of passage. [Italics supplied.]

Appellant also quotes from "Statutory Construction" by Crawford, p. 166, as follows:

Moreover, where the statute does not go into effect until after the expiration of a certain number of days from the performance of some act or some date, it is also necessary to compute time. The general, as well as the sensible, rule is that the day, or the day on which the required act was performed, and from which the time is to be computed, shall be excluded, and the last day of the number constituting the required period shall be included. This same rule applies to the computation of weeks, months, and years. It seems, however, that there is a departure from this general rule in some cases, or jurisdictions, and in counting the time from the performance of an act, the day of the performance is included, but in computing from the day or day of the date, the day of the date is excluded. Any rule which includes the day on which the act is performed is fairly subject to criticism, unless the act is performed at the earliest possible moment of the day; otherwise, the computation starts before the act is performed. [Italics supplied.]

Most of the cases cited by appellant support his contention that upon the question of the effective date of a statute to take effect on a future day the first day should be excluded, but generally such cases also hold that the last day for the period should be included.

Among State courts apparently holding that both the first and last days should be excluded are Nebraska, McGinn v. State, 65 N. W. 46, and Minnesota, Duncan v. Cobb, 21 N. W. 714.

However, the case of Dillon v. Gloss, Deputy Collector of United States Internal Revenue, 256 U. S. 368, seems to have settled, in principle, the precise question here involved.

One of the questions in that case was when the National Prohibition Act became effective. The joint resolution of the Congress submitting the proposed amendment to the legislatures of the States provided that it should go into effect one year after being ratified. The court in said case held that the amendment was ratified on January 16, 1919, and went into effect on January 16, 1920. The opinion states:

The provisions of the act which the petitioner was charged with violating and under which he was arrested (Title II, sec. 3, 26) were by the terms of the act (Title III, sec. 21) to be in force from and after the date when the Eighteenth Amendment should go into effect, and the latter by its own terms was to go into effect one year after being ratified. Its ratification, of which we take judicial notice, was consummated January 16, 1919. That the Secretary of State did not proclaim its ratification until January 29, 1919, is not material, for the date of its consummation, and not that on which it is proclaimed, controls. It follows that the provisions of the act with which the

petitioner is concerned went into effect January 16, 1920. His alleged offense and his arrest were on the following day; so his claim that those provisions had not gone into effect at the time is not well grounded.

Under appellant's theory the amendment would not have gone into effect until January 17th, but the Supreme Court held otherwise.

There seems to be a distinction made by the authorities between a provision of a statute prescribing a limitation within which an act may be performed, and a provision prescribing a time in the future when the act shall become effective. In the former, the inclusion of the last day usually means that the act may be performed until the last moment of that day, while in the latter the act becomes effective upon the first moment of the last day.

The cases of Burnet, Commissioner of Internal Revenue v. Willingham Loan & Trust Company, supra, and United States v. Hurlburt & Sons, supra, involved statutory language prescribing that acts might be performed within a specified time.

[1] Applying the general rule that in determining the effective date of a statute which is to take effect on a future day, the first day shall be excluded and the last day shall be included, and that its taking effect shall be from the first minute of the last day, we hold that the first day, of August 5, 1939, being excluded, the last day, August 5, 1940, must be included, and that the amendatory statute became effective on August 5, 1940, and on the first minute of that day.

[2] Therefore, appellant's application having been filed while the Amendatory Act was in effect, the one year limitation of public use and sale was applicable.

For the reasons stated herein the decision appealed from is affirmed. Affirmed.

IN RE DONALDSON

No. 4,764. Decided June 1, 1943. Petition for rehearing denied October 29, 1943 557 O. G. 232; 31 C. C. P. A. 705; 138 F. (2d) 422

PATENTABILITY.

The decision in the companion case of In re Donaldson, appeal No. 4,763, Held controlling, and the decision of the Board of Appeals affirmed.

APPEAL from the Patent Office. Affirmed.

Mr. George F. Stebbins and Mr. Donald A. Gardiner for Donaldson.

Mr. W. W. Cochran (Mr. E. L. Reynolds of counsel) for the Commissioner of Patents.

LENROOT, J.:

This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming a decision of the Primary Examiner rejecting all of the claims of appellant's application upon

the ground of prima facie use and sale of the involved device for more than one year prior to the date of his application.

The sole question presented here is that presented and concurrently decided by us in the companion case of In re Donaldson, appeal No. 4,763, ante, page 739.

Our decision in that case is controlling here, and for the reasons therein stated the decision of the Board of Appeals is affirmed. Affirmed.

IN RE HELMUTH

No. 4,771. Decided July 15, 1943. Petition for rehearing denied October 4, 1943

557 O. G. 415; 31 C. C. P. A. 742; 138 F. (2d) 73

PATENTABILITY-COMBINATION BATHROOM FIXTURE.

Certain claims to a combination bathroom fixture comprising a bathtub, a basin and a toilet, Held unpatentable over the prior art.

APPEAL from the Patent Office. Affirmed.

Mr. Lewis W. Helmuth pro se.

Mr. W. W. Cochran (Mr. E. L. Reynolds of counsel) for the Commissioner of Patents.

GARRETT, P. J.:

Appellant here seeks review of the decision of the Board of Appeals of the United States Patent Office so far as it affirmed the decision of the Examiner rejecting eleven claims of an application for patent for combination bathroom fixtures.

As finally passed upon by the Examiner the application embraced sixteen claims, all of which he rejected as lacking invention over prior art cited. Upon appeal the Board reversed the Examiner as to five of the claims (numbered, respectively, 12, 13, 24, 28, and 29) and these stand allowed. The claims on appeal are numbered 8, 10, 14, 15, 18 to 23, inclusive, and 25. While they are so worded that each claim has required individual study, No. 21 seems to embrace the principal structural features, and we here quote it:

21. A combination bathroom fixture including a bathtub having a high walled foot end and a low walled head end, a wash basin structure bridging the tub space and supported upon said high foot end of the tub, a basin cover with a mirror having a hinge extending along the basin structure from front to rear, a toilet bowl cover structure adjacent to the foot end of the tub having a low seat portion and an adjacent elevated portion connected to said basin structure adjacent said hinge, and said toilet cover structure having a leg recess between said low seat portion and said elevated portion whereby a user sitting upon said seat portion can position his knees in said recess and face the mirror.

The general description given by the Board reads:

The claims relate to a device designated a combination bathroom structure. The assembly shown comprises a bathtub, a basin and a toilet. The bathtub portion of the device comprises a tub structure that is more shallow or has lower side walls at one end than at the other. There is disposed across the high end of the bathtub the structure including a wash basin, faucet and valve mechanism. The faucet and valve mechanism control flow of water to the basin or to the tub or to a shower head. A particular kind of universal mounting for the faucet permits it to be swung from cooperation with the basin, tub, and as a shower head respectively. A hinged cover is provided for the basin structure and the cover carries a mirror. The toilet is so positioned with respect to the cover that it may serve as a convenient seat when the mirror is being used.

We also quote the following statement from the brief of appellant: This appeal concerns a rearranged bathroom unit which effectively combines a bathtub, a lavatory basin, and a water closet constructed in such a manner as to provide an additional piece of furniture for the bathroom. By appellant's novel rearrangement and construction of the usual bathroom fixtures, they are made to provide a fourth fixture or extra piece of furniture without occupying any more space than any three-fixture combination unit heretofore known. The construction and rearrangement of this unit to provide the fourth shaving or vanity fixture, also provides the unit with fifth and sixth fixtures in the form of a concealed medicinal or cosmetic shelf, and a cabinet or clothes space or hamper arranged beneath the closure for the new shaving and vanity fixture.

In addition to these six fixtures, the unit possesses the following conveniences and savings not possible with units heretofore known. A single combination water faucet is provided for the tub and basin and is universally mounted whereby it can be swung to a vertical erect position to provide a shower in the usual tub and can be swung to various vertical and horizontal positions above the tub and basin for hair washing. The invention is constructed from a few simple stampings united to provide maximum utility occupying minimum floor space.

The references cited are: Mahlum, Des. 110,643, July 26, 1938; Hale, 763,178, June 21, 1904; Langley, 1,054,572, Feb. 25, 1913; Ayers et al., 1,763,209, June 10, 1930; Druckenmiller, 1,901,151, Mar. 14, 1933; Leffland, 2,061,971, Nov. 24, 1936; Salomon (German), 217,092, Dec. 17, 1909.

Concerning the allowed claims the Board stated:

After careful consideration of the terms of the claims on appeal, it is our view that claims 12, 13, 24, 28, and 29 represent a novel combination of specific features constituting a patentable improvement over the state of the art as shown in the citations.

It will be observed that the foregoing is not specific as to the particular limitations of those claims which led the Board to regard them as containing patentable novelty over the prior art. That, of course, is not a matter of any concern to the court, and we make reference to it only because a large portion of appellant's brief is devoted to a comparison of the allowed and rejected claims, and it is argued that the Board's decision "is inconsistent with respect to the question of invention," and seemingly insists that the rejected claims should be allowed by us because of those allowed by the Board.