BLISS V. UNITED STATES.
(Circuit Court, E. D. Mi88ouri, E. D. April 14,1888.)
CLAIMS AGAINST UNITED STATES-JURISDICTION OF CIRCUIT COURTS- PUEVIOUS REJECTION. '
Act of March 3, 1887, giving to United States circuit courts jurisdiction of claims against the United States, contains a proviso "that nothing in this section shall be construed as giving either of the courts herein mentioned jurisdiction to hear and determine * * * claims which have been heretofore rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same." Held that, the comptroller of the treasury having charge of the adjustment of accounts against the government, a rejection of an account by him is a rejection by a department au. thorized to hear and determine the same. within the meaning of said proviso. Where an account against the United States for legal services has been approved by the attorney general, adjusted by the first auditor. certified to the first comptroller, and by him approved, but not paid. the United States circuit court ,has jurisdiction of an action to recover the amount thereof, under act of March 3, 1887.
At Law. Plea to the jurisdiction of the United States circuit court. William H. Bliss, pro se. Tlurtnas P. Bashaw, Dist. Atty., and Thomas M. Knapp, Asst. Dist. Atty., for the United States. BREWER, J., (orally.) In the case of William H. Bliss v. United States, there is a plea to the jurisdiction of this court. The action is one against the United States, to recover for services as United States district attorney, and under special employment. It is brought under the act of March 3, 1887, which gives to the circuit courts jurisdiction of claims against the United States, with this proviso: "Provided, however. that nothing in this section shall be construed as giving either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late civil war, commonly known as · war claims,' or to heat and determine other claims which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same." The plea is one running to the entire petition, there being several counts; and it rests upon this last proposition, that this court has no jurisdiction in cases where the claims nave been heretofore rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. It appears from the amended petition that the treasury department refuses to pay any of these claims. That the comptroller is an officer having such charge of the adjustment and settlement of accounts against the government that his action amounts to that of the treasury department in rejecting a claim, is, we think, clear. Section 2169 gives to him the power and makes it his duty to superintend the adjustment and preservation of the public accounts, subject to his revision. Section 191, after providing for the presentation of claims, declares: "But the decision thereon shall be final and conclu-
sive, as hereinbefore provided." That is, he is the officer of the department to whom the:subject of accounts is intrusted, and when he acts upon those accounts, it is the action of the department. When he rejects an account; it may be said, within the scope of this act of 1887, that has been a rejection by a department authorized to hear and determine the same. Plaintiff insists that this language in the act of 1887implies a judgment, or that which is equivalent toa judgment, and that it means simply to saY' that the court shall have nojurisdiction of claims which have be¢n once adjudicated. If it meant only that, the language was surplusage, because if there has been once an adjudication, of course the matter would not be open to readjudication. What is meant by that, as i construe it, is that when, in 1887, congress said the court should· have jurisdiction of suits against the government, it was intended. to apply prospectively and to claims which should originate in the future, or, if they originated in the past, that no claim which had once been presented to any court, department, or commission, and had been rejected or reported on adversely,""';"for that is the language of the section,-should be suable in the courts. With that construction, whenever a claim has been presented to a department, oran officer of that department authorized to pass on the claim, (and act upon conclusively, so far as the Kovernment is concerned, except when congl·essintervenes,) and rejected or reported on adversely, that clahll is not the subject of litigation in the courts, if so acted on before the 3d of March, 1887; and, these claims, were acted upon and payaccording to the admission ment refused prior to such , '. .. There are, however, in the first count, allegations which compel us to overrule the plea to, the jurisdiction, whatever tbe fl;icts may be as developed hereafter. They are that the plaintiff was employed to render special services by the attorney general; that the account was approved by the attorney general, and adjusted by the first. auditor, and a balance of $2,530 found to be due ,the plaintiff, and that it was certifiedb:r the auditor to the first comptroller, and by him approved, hut not paid. So, on these allegations, it appears that all the officers of ,the government charged with an examination of tbefacts have approved this claim, and it never has been rejected. The plaintiff simply has not received the money. He stands in the attitude of a man with a claim against a corporation j which the corporation audits, approves and orders paid, but does not pay. That is the status of this claim, accordto the allegations of the first count, and so it is a' claim which has been rejected or reported on adversely by any department or mission,and the plea, being to the petition asa whole, will have to be overruled, on the main question discussed by counsel in their briefs, we think thA views of the district attorney are right, and thee vieWs of the plaintiff are wrong.
SMITH V.' DAVIS.
(Oircuit OOU'l"t, N. D. illinois, S. D.
In support of prior use st't up as a. defense to a bill for infringement of letters patent No. 371,524, of October 11,1887. to Elias Smith, for an induction coil, whereby a current of elt'ctricity may be used with advantage to deaden the pain caused by dental operations, defendant showed that one Grimes, a dentist, had in 1859 taken a galvlmic battery and attached to it a third wire which in turn he attached to the operating instrument, and that the apparatus was successfully worked to prevent pain in dental operations in the same manner as in the Smith patent. He used the apparatus for about a year, and thEm abandoned it until August, 1887, when he took it up again after the Smith machine had gone into Use. 'rhe only witness to this effect was Grimes himself, and he was unable to produce his apparatus. It was also shown that Grimes had copied bodily the certificates contained in Smith's circulars as to the value and usefulness of that'patent, and had used them to advertise the , machines made by himself in 1887. Held, that the evidence failed to establish prior ulle. ; Defendant also showed by one Froeckman that he, F .. had made' batteries with three ,wires, similar to those of Smith, as early as 1873, and that battel'ies of his m,ake had been used about that time in a, dime museum in, St. Louis, and on the streets of that city by one James or Jacques, asort of street fakir, to cure toothache, earache, neuralgia, etc. The battery was, however, not produced,although.it was shown to be in the possesllion of Jacques' widow, in St.Louis, and the case was tried in Peoria, Ill. . The widow also testified that the battery had but two wires,'and in this she was corroborated 'by ,two other witnesses. Held,that the evidence did not establish prior use.
PATENT8 FOR INVENTION8-PATENTABIJ,ITY-PRIOR USE.
In Equity. Bill for, infringement. Hi, W. ,Well8, for complainants. ,0. N. M'megan, for respondent.
J. In this case defendant is charged with the infringement ofpatent No. 371,524, granted October 11, 1887, to Elias Smith, assignor or one-half to Fred. ,Kimble, for an induction coil. The pose of the invention, as stated in the specifications, is to produce means whereby aCUlTent of electricity may be used with advantage to deaden the pain caused by dental operations. The apparatus, described at length in the specifications and drawings, consists of a galvanic battery,;with two jars and provision for raising and lowering the cells into the jars, with wires leading from the cells to the poles, and from the poles are insulated wires terminating in electrodes, which are to be taken in the hands ofthe patient. The current from the positive pole is divided, and a third wire is taken from this pole and attached to the forceps or other instrument with which the dental operation is to be performed, and, when in use, the cells are dropped, by a device shown, into the liquid; so as to create the galvanic current. The patient takes the two electrodes, one in each hand, while the operator applies the forceps, or other instrument, to which the third wire is attached, to the tooth or other part upon which the operation is to be performed; the effect being, as is claimed, to deaden the nerves to suchan extent as to make