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act of that date. Act May 31, 1900, c. 598, 31 Stat. 221, 237. agreement contained specific provisions respecting the apent and sale, under the supervision of the Secretary of the :, of the lots in town sites surveyed and laid out thereunder,
preferences being accorded, in that connection, to owners -rovements and others, and also directed that all lands of the except as therein otherwise provided, should be allotted in Ity, by the Commission to the Five Civilized Tribes, so as to o each member of the tribe an equal share of the whole in value. e gravamen of the appellant's complaint is that in surveying aying out the town site of Bixby, an unincorporated town hava population of 200 or more, the Secretary of the Interior reted the town site to 80 acres and declined to include therein the s now in controversy; in other words, that, although the Secre
found and concluded, as his act necessarily imports, that the i present needs and the reasonable prospective growth of the in did not require that these lands be included in the town site, fact was actually otherwise. The title and ownership of the Creek lands, including those now controversy, being in the tribe at that time, whether or not any
them should be surveyed, laid out, and disposed of as town sites, nd, if so, to what extent and through what agency this should be lone, were matters which it was competent to determine in the agreenent, In keeping with the prior legislation of Congress, it was therein determined that some of these lands, and particularly those upon which there were towns having a present population of 200 or more, should be surveyed, laid out, and disposed of as town sites; that the extent of each site should be measured by the then present needs and the reasonable prospective growth of the town; and that the decision of this question of fact should be intrusted to the Secretary of the Interior. The agreement contains no indication of an intent that his decision should be subject to re-examination elsewhere, and, considering the nature of the question, the direction that the exterior limits of each site should be designated “at the earliest practicable time," and the evident purpose that the allotment of adjacent lands should proceed expeditiously, we think it was intended to make his decision final. United States ex rel. v. Hitchcock (decided March 4, 1907) 27 Sup. Ct. 423, 51 L. Ed. And it is not without significance in this connection that one of the concluding provisions of the agreement declares:
"All things necessary to carrying into effect this agreement, not otherwise herein specifically provided for, shall be done under authority and direction of the Secretary of the Interior."
As measurably relevant, we quote from Cragin v. Powell, 128 U. S. 691, 697, 9 Sup. Ct. 203, 206, 32 L. Ed. 566, as follows:
"The mistakes and abuses which have crept into the official surveys of the public domain form a fruitful theme of complaint in the political branches of the government. The correction of these mistakes and abuses has not been delegated to the judiciary.”
But, if the decision of the Secretary of the Interior be not so conclusive as we have stated, it is at least controlling in the absence of a clear, unequivocal, and convincing showing that it was wrong and was induced by fraud or imposition. The appellant's complaint does not contain such a showing. It makes liberal use of such words as "fraudulent,” “arbitrary,” and “injurious,” but the matters properly stated are not sufficient, in our opinion, to sustain the pleader's conclusion. There is no statement that any of the lands in controversy, which comprise 80 acres, were used for town purposes, and what is said in respect of their occupancy and state of improvement is not only indefinite, but is largely in the nature of an explanation of why "houses were not erected thereon” and why they were not used for purposes of business or residence. And, while much is said about the prospective growth of the town, it does not tend with any certainty to show that the Secretary's decision was wrong in point of fact.
It is alleged that this decision was in reality made by one of the clerks in the Department of the Interior, and that its approval by the Secretary was a mere perfunctory act without any personal consideration of the merits. But of this it is sufficient to observe that in De Cambra v. Rogers, 189 U. S. 119, 23 Sup. Ct. 519, 47 L. Ed. 734, it was said of a like allegation:
“It is hardly necessary to say that, when a decision has been made by the Secretary of the Interior, courts will not entertain an inquiry as to the extent of his investigation and knowledge of the points decided, or as to the methods by which he reached his determination."
Our conclusion is that the Court of Appeals in the Indian Territory rightly held that the complaint was properly dismissed (Capitol Townsite Co. v. Fox (Ind. T.) 90 S. W. 614), and its decree is accordingly affirmed.
AMERICAN BRAKE SHOE & FOUNDRY CO. V. RAILWAY MA.
TERIALS CO. et al.
(Circuit Court of Appeals, Seventh Circuit. January 22, 1907.)
No. 1,262. PATENTE-INVENTION-BRAKE SHOE.
The Herron patent, No. 423,998, for a brake shoe of the composite type, having wrought-iron bars imbedded in the casting for the purpose of strengthening it, is void for lack of invention. The composite shoe itself was old in the art, and the method of re-enforcing castings by Imbedding wrought-iron strips therein was old in the casting art, and practiced generally by foundrymen. Also composite brake shoes had pre viously been 'strengthened by others by applying a wrought-iron backing plate and by strips placed on the sides, and the transference of such plates or strips to the middle of the shoe by the well-known foundry method did not involve invention nor accomplish any new practical re sult. Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.
For opinion below, see 143 Fed. 540.
Appellant's bill for alleged infringement of patent No. 423,998, issued March 25, 1890, to Herron, for improvements in brake shoes, was dismissed for want of equity on the ground of lack of invention.
Claim 2 was the basis of the suit: “(2) In a brake-shoe, the shoe, A, having blocks, B, of steel set in its face below the surface, and the
s, C, of wrought iron, substantially as shown and described, and
. 3 bis invention relates to brake shoes, more especially relating to the class oes known as 'composite' shoes, the object being to provide a shoe that be strong, durable, and afford the greatest possible frictional contact the hardened tire of the wheel, and one that will fit itself to the circumtial curve of said wheel, and that will not be open to the defects heretofound in composite shoes. The details whereby these ends are accomed are hereinafter fully described, and the parts claimed as new pointed in the claims. 2 the accompanying drawings, Fig. 1 is a perspective view showing the ct-face and one edge and an end of the shoe. Fig. 2 is a vertical crosson of Fig. 1 on the line x, y. Fig. 3 is a longitudinal section on the line Fig. 1 showing the cross-sectional contours. the figures like reference marks indicate corresponding parts in the al figures. be blocks, B, are of crucible steel and are of cross-sectional form, as shown in Fig. 3, being set in the face of the main body of said portion A ghth to a quarter of an inch, said distance to be governed by the wearing ties of the iron of which said part A is made, the prominence of the
of the body, A, projecting above the blocks, B, being for the purpose fering a surface for contact with the wheel which shall be easily worn
to the curve of the circumferential surface of the wheel and afford as as possible a steady bearing for the shoe on said circumferential sur
Projections, D, enter corresponding grooves in the hard pieces, B, and a rib strengthening the shoe and obviating any possibility of lateral disment of the parts, B. Strips or curved rods, C, of wrought-iron are cast the main body of the shoe for the purpose of strengthening the entire , it being in such a position that any stress tending to break the shoe in -section will exert a pulling tension on said strip, C, and a crushing n on the body of the shoe, thus applying the wrought-iron of the one the cast-iron of the other to the exact force it is best adapted to success
withstand. These strips may be as many in number as desired. The ier the work to be done, the more intense is the strain to be overcome iarded against, and the more strength to be supplied by these strips, C.” e prior art was illustrated by the German publication of Von Waldegg in and by the following patents: 8,255, reissue, McConway; 9,329, reis
sue, Curtice; 11,137, Parker; 11,746, Walsh; 18,962, Eidlitz; 27,141, McCammon; 34,539, Warden; 43,418, Lovelace; 50.976, Storer and Whelpley ; 54,838, Arnold ; 78,786, Brown; 82,677, Barrows; 98,330, Titus; 149,875, McNish; 168,408, Onions; 174,898, Congdon; 223,062, Nichols; 286,371, Baldwin ; 298,283, Brigham; 324,851, Lappin ; 329,459, Lappin ; 340,353, Pfleging ; 344,517, Bradel ; 354,724, Meehan; 354,725, Meehan ; 374,272, Sargent; 374,427, Pollock ; 385,352, Hayes; 397,617, Tilden; 399,665, Hatt; 410,989, Pollock ; 412,572, Whalen et al.
Thomas F. Sheridan and Edmund Wetmore, for appellant.
BAKER, Circuit Judge (after stating the facts). Excepting the Pollock patent, which is rather doubtful as an anticipation, it may be taken that the combination of claim 2 was not in any one disclosure of the prior art. The elements, broadly, are the cast-iron body, the hard netal insets, and the wrought-iron strips imbedded in the body back of the insets. The body with insets, the composite shoe, having the advantages referred to by Herron respecting durability, friction, and self-fitting to the car-wheel, was invented and developed by Congdon, Lappin, and others. The placing of wrought-iron strips within a mold so that they should be imbedded in any iron casting which was desired to be strengthened against fracture and held together after fracture was shown by patents and by oral testimony to be an old and familiar means of accomplishing the aforesaid ends, so old and familiar that a foundry foreman of 27 years' experience testified that it would be employed without hesitation or experiment whenever occasion arose. That a transverse strain upon any such casting should call upon the tensile strength of the wrought iron and the crush-resisting strength of the cast iron between the wrought-iron strips and the surface where the strain is applied, as dwelt upon by Herron in his specification, is but the physical law of the structure, a law discovered and commonly used long before Herron's time. The Herron cast shoe is therefore the old Congdon cast shoe re-enforced with the old means of re-enforcing any casting.
That the present patent comes within the exceptions, and that invention was required to extend the well-known strengthening method to the casting of a brake shoe, is argued in this wise: The Congdon composite-face shoe was invented in 1876; use proved that it was weaker than the all-iron shoe; various inventors, McConway in 1878, Curtice in 1880, Sargent in 1887, had recognized the desirability of strengthening the Congdon shoe, and had tried various methods, but not the method of imbedding wrought-iron strips behind the insets; therefore, although the ordinary foundryman would have known how to do what Herron did if the thought had occurred to him, the failure of McConway and others to re-enforce the Congdon casting by this familiar foundry expedient proves that in 1890 the Herron shoe was not an obvious thing, no matter how plain it may seem now in the light of Herron's disclosure, and that the creative imagination of the inventor had to be brought into play to produce this new use of the wrought-iron strips. And the teachings of the Barbed Wire Patent, 143 U. S. 275, 12 Sup. Ct. 143, 36 L. Ed. 154, and other cases, are invoked to the effect that he who changes the failure or partial success of others into complete success is entitled to the award of monopoly.
The argument might appeal to us more persuasively on a different ecord. In this case it appears that Von Waldegg in 1871 had re-enorced the old cast-iron shoe by'attaching a wrought-iron strip along he back. After the Congdon composite-face shoe came into use, IcConway strengthened it by a wrought-iron backing plate, and Curtice and Sargent, differing from each other in details, applied rought-iron strips along the sides of the composite face. These strips vere placed in the molds according to the usual foundry practice.
Theoretically, the McConway backing plate holds together the castcon if that becomes fractured. It lends strength according to its mass.
cannot be bent in use without bringing into play the tensile strength f the metal in the front part of the plate and the crush-resisting rength of the metal at the back. The Curtice and the Sargent strips ct as binders of broken cast iron, and, more prominently than in Heron's shoe, rely on the tensile strength of wrought iron and the crushesisting strength of cast iron.
What new practical result did Herron attain by transferring the rought-iron strips to the middle of the composite shoe? His shoe id not capture the market and drive out other re-enforced composite noes. Of appellant's own output only 3 per cent. is of the Herron pe. Nearly all of the great railroad systems of our country are amed in the record, and only one adopted the Herron shoe. The suerintendent of motive power of that system, in answering the question Where did you use the Herron shoe?” said, “Where did we use it? Je are not using it very extensively at present anywhere. We have abstituted a steel-back shoe for it.” Some smaller roads used the erron shoe "a short time.” Appellant's railroad witnesses substanilly agree that equally good results are obtained with other re-enforced toes. Appellant's unusual hammer test, the test by pressure being istomarily employed, shows that the Herron shoe is stronger than an re-enforced Congdon shoe. It proves nothing as to the comparaje strengths of the Herron and of other re-enforced composite shoes. The case standing, then, that Herron is entitled to no credit for the mposite cast shoe, or for the method of strengthening castings by bedding wrought-iron strips, or for the employment of wrought-iron rips to re-enforce composite cast shoes, and that the transference of e strips to the middle of the shoe accomplished no new practical relt, the decree is affirmed.
AMERICAN BRAKE SHOE & FOUNDRY CO. V. WESTERN IRON &
STEEL CO. (Circuit Court of Appeals, Seventh Circuit. January 22, 1907.)
No. 1,311. Appeal from the Circuit Court of the United States for the Northern strict of Illinois, Eastern Division. For opinion below, see 143 Fed. 540. Thomas F. Sheridan and Edmund Wetmore, for appellant. William C. Belt, for appellee. Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.