60 F. 387 -

UNITED

sTATEs' v.

BOARD OFLIQt1IDATION.

887

persolls, not its own employes bandling the traiI)., from riding on the top or cattle cars between the city or New Orleans aM the slaughterhouse without the written permIssion ot. the iocal agent, and that ,notice of this written Order was gIven to said employes, and a copy of it was posted in its station at its depot in the city of New Orleans, where it transacted its business with shippers and passengers,-then it was under no legal obligation to give any other. or pn-ther notice to the public of sucb rule or regulation. And if the ji:iry .fUrther find tbat the plaintiff was at the, time of bis Injury riding on tl;1e ,top of a cattle car, in violation of said general order. even though he was there with the permission of the trainmen, he waS, a trespasser on said car, and the company owed him no duty except that of not wantonly injuring him. And if the jury further find that the plaintiff would not have been injured if he had not been on the roof of said cattle car, then, by being there under the above circumstances, he was guilty' of contributory negligence, and cannot recover,'-which instruction the court refused; to which refusal of the court to give the said instruction the defendants' counsel then and there excepted, before the jury retired, and t,nders this, their blII of exception, which is duly allowed and signed accordingly."

It is difficult to conceive what the railroad company could have done, more than it did as recited in this bill, to signify to the defendant in error that he was not authorized to ride on the top of cattle cars of the Southern Railroad Company. The argument seems to be that, because the trainl hands permitted him to go upon the car, and did not peremptorily eject him as a trespasser, he thereby bec,ame a passenger, and the case seems to require'that, although voluntarily-and, as the evidence shows, unnecessarily-put himself in a place known by him to be dangerous, yet, when injured, he can legally recover damages from the railroad company. .' In my opinion, the trial court erred in refusing to instruct, the , jury to find for the defendants, in modifying the instruction asked as given in the third bill of exceptions, and in refusing the instruction as to notice given in the fourth bill of exceptions, and that thia court errs in affirming the judgment of the trial court.

UNITED STATES ex reI. FISHER et aI. v. BOARD OF LIQIDDATION OF CITY DEBT OF NEW ORLEANS. (Circuit Court of Appeills, FIfth Circuit. No. 165. 1.
MUNICIPAL CORPORATIONS-BoNDS-MANDAMUS-EvIDENCE.

January 2, 1894.)

Relators, who held a judgment against the board ot school directors ot the city ot New Orleans, applied for a writ of mandamus to compel the board of liquidation ot the city debt to issue bonds in liquidation ot such judgment. tJIeld that, on such application, evidence that a special tax had been levh:id by the city to pay the indebtednes& held by the relators, and that all claims but the school lIidebtedness had been funded, is irrelevant.

2.

SAME-BoARD OF LIQUIDATION OF NEW ORLEANS-POWERS.

Under Act La. No. 74 of 1880. which authorizes the municlpa:I government of the city ot New Orleans to iBBue bonds in pilymentof the valid ot the city, the government alone .Is unbonded Invested with 'authority in the premises; andinandamus will not lie agaInst the b9ard liqUidation or tbe cIty debt to compel tbem to issue ac.cb bonds. '

,

.

388

FEDlllRAL

vol. 60.

B. SU[;Bl-,-JE\SV)l: OFJ30NDS. ,' ' " Ac1;L!L:tio. 110 of 189O,Whlch is the $Ole authority under which SJUch

eau, 4d#- issue bonds of the not em,Issue bonds, in e;KCb:li'nge' for valid outstanding bonds of tbe):lty, and for sale, 1:() special fund to pay certain bonds and against thedty' therein speclfted. 4. S.in...,.:P,.t.nfBNT OF ", ' Act;, u.... No. 67 of 1$S4, :Which authorizes the board. of ,liquidation to pay Cf!li:$;Iudgments, to jud,gments the city of Ne'" Orlea1llJ,b/1.sed, on, floating debts or clliiUlB ,against the Clty,and does not judgUleIit 8:8'ainst t,he bO,a,rd or school directors.

In El'l,'or to the CircuWCourt of the United States for the Eastern DistMct9fLouisiana., Thilil WiU,l4'PJ'QCeeding.by the on the relation of M. Y. Fisher!and, wife against the board, of liquidation of the city, debt of New 01'1eans; for a writ'of mandamus. The writ was denied, and relators bring error. '
" q ,

The phi.1nt1ffsln el'1'Or,re1ators In' the.clrcn1t court, filed their petition against tp,e .1>ol»'d ,Of llquidJl,tj.pnof the. city (J,ebt of New therein al:the relators h!l4. obtained jUdgjnent in said circuit, court against the bOard. of School directo;rs ot the city of New for the sum of $8,· ' 097.17'; ,With 51 per cent. InterestfiooUlMay 22, 1890; that the said judgment waafina1'Mld ,executory; that a: writ of fieri facias had been issued against the.,!'le,fffl),(,Uult, and, had that, under the provisions 7'4 of 1880, relatOrs we,r,4:l en"t,i,t"led to ha,ve, their, S:ud jUdgJ:lJ"ent liqu:l.d,ated1n bonds of thecltyOf New Orleans provided f()r Under said act: thlit:J.ielitbrs,were also entitled;'Undei: a,cts'Nos. 67 of 18S4and 110 of 1890, to, Ila.fe,tbe:,aame funded, and, to obtaln·theoew cOnstitutional bonds provided for In such CQ.\les; an(J, thattllerelatol'fl' amicable, demand for the, bonds. Tl;1e of tll.epet!tion was,that,a 'Vrit of manda" the city to issue to peti· , mus'JsWe,Of(1er1ng the board tionersctl1e 'bonds of the citY ',otNi'rW' Otleaiislin SUch cases provided, for the, fullamolintof principal, intetest, /lIld 'costs, of the 'judgment aforesaid. Up·' on t;hesa14 petition an Qf .Ulandamulij ",as! issued, and thereupon the lJoard of liquidation pf, the qe,bt ,filed an answer a,t length" in SUbstance, that the' judgmerif of ilie reiktbrs was based upon certificates of alleged indebtedness issued by the board of school directors of the city of New Orleans for asserted salaries of·teachers and expenses of said board, and that the said certificates upon which the judgment was founded, and the jUdgment, weJ,'e the, obllgaUQIUl solely of 1(he board of school directors, and not theobligatlonS of the eltyof NewOrlellll.$ or of 'the board of liquidators; that Act No. 74 of 1880. in so: far lIS'it undertook to authorize the issue of bonds by the city of New Orlell,Ils for salaries of school teachers or school expenses, was Wholly ;void, atldo! no e1fect; that the said act was abortive, and no bonds were ever issued under it, ,an,d, that it had been superseded and made void and of no effect, as well becaUse of its unconstitutionality as by the effect of subsequent legislation for the issuance ot bollds and the levlelilof ta+es to pay theUl,referring t()Acts No. 133 of 1880, Nos. 57 and 68 of i1882, the constitutional amendment of ;1890, and Act No. 110 of that year; that, in the suit of the re1l1,torsagliinst of New Orleans in the civil district court of the state, it was finally adjtu'lged by the! said court, as well as bY the supreUie court of the, state on appeal. that the relators had; no de· mand,w:4atever against the c1ty()f New, Orleans on said certificates on which their jUdgUient is founded, and the said judgment is now res judicata; further, that under the law, thlf bonds 9f the city can be issued by the board of against, the ,city for debts of' the city COIl1" liquidation only for tracted prior to 1879;, relators, have, no judgUient against the city; and that the board is not only not authorized t9 issue bonds for reU!-tors' but, J$' V,:l'O,)libited from ,SU/:lh issue; ,and re,fers to, the acts creating the board of li!lufdation. defining .its powers, and to all the legislative acts in relationtheteto. on the issues thus Ulade, the parties waived

UNITED STATES f7. BOARD OF LIQUIDATION.

389

trl.alby jury, and submitted the cause to the court. On the trial, the plaintiffs ofrered the. testimony of John L. Newman and John E. Roux, and vl\.l'ious ordinances of the city of 'New Orleans, and also the report of the city COIIlPtroller, all of which testimony and evidence tended to prove that the city of New Orleans had reduced and canceled assessments on which a large amount of the school taxes was based for the years. between 1872 and 1879. such as would satisfy plaintiffs' claim, and bad also remitted to tbe same extent school taxcs; also, that tbe city tax was divided into a police tax, interest tax, park tax, and school and general tax, all of wbicb stood on the footing as tbe school tax, and that tbe indebtedness against each of said particular revenues had been funded, witb the exception of tbe scbool indebfedness. Objection was made to said evidence on tbe ground that it was irrelevant, and could be of no effect in the cause, which objection was maintained by the court, and- the evidence ruled out. The judgment of the circuit court, to enforce which the wrIt of mandamus was asked for, Is as foland decreed that the plaintifr, Mrs. M. Fisher, lows: "It Is ordered, and her husband, M. M. Fisher, have judgment In her favor, and aga.inst the board of directors of the city schools of New Orleans, for tbe sum of $8,097.17, wIth five per cent. Interest per annum from May 22, 1890, and COsts, payable out of the school tax levIed by the city of New Orleans prior to 1879." The court below refused the mandamus, for the reason that the relators have no judgment agaibst the cIty of New Orleans, and it Is only judgments against that municipal corporatIon which, under the existing law, can be dealt with and funded by the board of liquidation.

Charles Louque, for plaintiffs in error. Henry C. Miller, for defendant in error. Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge. PARDEE, Circuit Judge (after stating the facts). The first assignment of error is that the circuit court erred in excluding the evidence tending to show that a special tax had been levied by the city of New Orleans to pay the indebtedness held by the relators, a large amount had been reduced and canceled by the city, and all other claims had been funded, with the exception of the school indebtedness. The suit being one to compel the performance of a strictly legal and ministerial duty, the evidence in question was irrelevant. If it had been admitted, it would only have tended to show an equity in favor of relators, and against the city of New Orleans, which could in no event avail relators in the present suit. The second assignment of error is that "the court erred in not enforcing section 3 of the act No. 74 of 1880." The act referred to proVldes, in its first section, that "the municipal government of the city of New Orleans be and is hereby authorized and empowered to issue from time to time, as they may be required, bonds of the sum of five dollars ($5), having ten years to run from the 1st day of July, 1880, bearing interest at the rate of 3 per cent. per annum, payable at the city hall in New Orleans, and with semiannual coupons attached;" and, in its third section, that the said bonds may be issued to take up the unbonded valid indebtedness of the said city of New Orleans, and the unpaid salaries of school teachers and expenses of maintaining the public schools, created since 1872 and prior to January 1, 1880, with certain other provisions not necessary to enumerate. The other sections of the act relate to details with regard to the issuance of bonds, and with regard to providing a special fund

,89,0 and aiakiPgl to redeem 'the bonds. See Acts La. 1880, p. 84. Three, tindl OOlIlplete' answers maybe given this assignment:,", the llr¢t',J,n,questipn,iheboard of liquidation of the ' city suit, Is 'Dot by said act authorized to issue' any bonds'whatever, but that duty, under the terms of the act, governmentof the city of New Orleans. (2) The ,in ,question and practically repealed by passed 4.ays afte,r, by the same legislature, which latter aet created theboa:rd ofliquidation of the city debt, gave the said board: control and direction of all matters relating to the bort(ied debt of thecit;tof New Orleans, provided when and how new bond, be issued,. and turned over to said board the lllatter of Uquidatingthe indebtedness of the city of New Orleans, and applying its assets to thesatisfactioIithereof. See Acts (3) Thel;tct in question, so far as it places the unschool teac4ers and the expenses of maintaining the publIc schQols created since 1872 and prior to January 1, 1880, on the same footing as indebtedneEjs of the 'city of New Orleans, is in nolation bf article 45 of the constitution of 1879, which denies the power of the general assembly to grant extra compensation to public officers, or pay, or otherWise authorize the payment of, any claim against the state or any parish or muniCipality of the. state, under allY agreement or contract made without express authority of law, and declaring all such contracts or agreements null and void; and it was so adjudged by the supreme court of the state of v. Oityo£ New Orleans, 38 La. Ann. 283. See, also, New Odeans Taxpayers Ass'n v. Oity of New Orleans, 33 La. Ann. 567. The third, !tSsignment of error is that the court erred "in not grantfag the relators the reliet prayed for under Act No. 110 of 1890 and the Mt :ijo. 67 of 1884." Theflrst section of Act 110 of 1890 (Acts La. 1S901 P,l.44) provides fo.r the submission to the electors of the state of amendments to the cons-titution for the pmpose of retiring the .validontstanding bonds of the city of New Orleans, including certificates or the bonds issued under the act No. 58 of .1882, llnd to retire judgments then or thereafter t'endered against the city on flollting debt claims prior to 1879, entitled to be funded under Act NOl67 of 1884; and, further, that the said bonds shall,not exceed It also'" provides for the issue of constitutional bonds of the city of New Orleans to the amount 0($:1;9,000,000. Section 2 of the act authorizes the sale of suell b(mds.JI:.[fhethir(i provides for the deposit of funds received frma 'the sale, .Qtconstitutilmal bonds, whieh fund shall be uaedsolcl.(y.and exclusively for the purpose of retiring by payIBEW-t all the.; ;now oU't$tanding .valid bonds of the city of New Orleans, lllattire:d;or,subjectto be called, including the certificates or bondlil issued:AAP",r the:folJrtb. section of Act No. 58 of 1882, and including o1!hereafter ren<lered on floating claims prior to 1879, entitle4",tQ 1;)efunded under Act 67 of 1884, but excluding premium bonds .iMueO" under Act No·. 31' of, 1876. The fourth secin which. the board shall purchase out-

UNITED STATES 'V. BOARD OF LIQUIDATION.

391

standing bonds of the city, and the fifth section for the exchange of the constitutional ,bonds authorized for the valid outstanding bonds of the city of New Orleans. The other provisions of the act need not be referred to. It will be noticed that this act (and iUs the sole authority under which the board of liquidation of the city debt is now authorized to issue bonds of the city of New Orleans) does not, in terms nor by necessary implication, authorize the issue of bonds except for exchange for the valid outstanding bonds of the city of New Orleans, and for sale to raise a special fund which is to be used solely and exclusively for the purpose of retiring by payment outstanding valid bonds, including certain certificates and including judgments then or thereafter rendered on floating claims prior to 1879, and entitled to be funded under Act No. 67 of 1884:; and, further, ,that said board of liquidation is authorized to exchange the constitutional bonds authorized to be issued only for the, valid outstanding bonds of the city of New Orleans. As to t,he judgments then and thereafter to be rendered on floating debt claims prior to 1879, it seems that the board is not authorized to deal with them otherwise than by payment. Act No. 67 of 1884: (Acts La.p: 89), in its second section provides as follows:
"That the said board of liquidation of the city j'lebt be and it is hereby authorized and reqUired, and it is made the duty of the said board, to retire and cancel the entire debt of the city of New Orleans, now in the form of executory judgments and registered, under the provisions of Act No. 5 of 1870, and that which hereafter may become merged into executory judgments and likewise registered; except the floating debt or claims created for and against the year 1879, and SUbsequent Ye'J.rs; that it is the full intent and meaning of this act to apply solely the privileges thereof to executory judgments, at present rendered against such city, and to such floating debt or claims against said city for 1878, and previous years merged and to be merged into executory judgments, whether absolute or rendered against the revenues of any particular year or years, previous to the year 1879; that for' the purpose of retiring and canceling said judgment debt, the said board is authorized arid required either to sell the bonds to be issued under this act at not less than their par value and apply the proceeds thereot' to the payment of the said judgments, as above specified, or issue said bonds in exchange fon said judgments."

The judgments on floating claims prior to 1879 that are entitled to be funded under the act of 1884 (No. 67) are described in the sec· tion just quoted as executory judgments rendered against the city, and based on floating debts or claims against the city. The legisla· tive intent declared in the act itself renders this perfectly clear. Now, the relators have no judgments against the city, and it is shown in Labatt v. City of New Orleans that the relators' claims are not, and cannot be made, a debt of the city. Besides this, in the case of Fisher v. School Directors, 44 La. Ann. 184:, 10 South. 4:94, which was a suit by the relators herein to establish their claims,.being the .same claims now merged into a judgment in the circuit court, which fs the basis of the present suit for a mandamus brought against the board of school directors, and by way of obtaining recognition of the claims also against the city of New Orleans, it was expressly adjudged that the claims in question were in no sense debts or liabilities of the city of New Orleans, and this judgment in favor of the city is

892

FEDERA.L REPOR,£.I1R,

voL 60.

resjudi-eata. The circuit,'eonrtrefused the mandamus prayed forbtymlators, because they have no judgment against the city of New Orlea.ns,and. it is against that municipal corporation whieh;under the existing law, can be dealt with by the board ofliquidlltion. This rulhig :was in all respects correct, and should beaflirnied,with costs. Judgment accordingly.

DURAND et al v. GREEN et at. (Clre-nlt Court. E. D; Pennsylvania. February 19, 1S94.)

No.6.

1.

PATENTS FOB INVENTIONS-CLAIM-PROCESS AND PRODUCT.

In letters patent No. 252,721, granted February 14, 1882, to Horace Koechlin,for the "manufact1lfe of colors or d:l"estuffs," the claim was as follows: "The Improvement in the manUfacture of coloring matters, consisting in the production otviolet coloring matters by the action of nitroso derivatives. of the tertiary amines on tannin, or equivalent reaction." 'Held., that this Claim was for a process, and not for the resulting product; and it cannot be extended to cove.I.-' the latter on the ground that the product inheres in the process. ' 'I'he..claim being distinctly for the. process only, it cannot be enlarged to cover the product as well,.by reference to statements illj the specification that "tbeproducts, as well as the methods of prodUcing the same, comprises, therefore, the prepara.constitute part of the tion and the coloring matters abpve .

.

SAME-SPEClFIC.A.ll'ION-ENLARGEMENT .· OF OLAIM.

In Equity. On final hearing. Bill by L. Durand, Huguenin & Green, Schulze-Berge '&Koechlin,for infringement of . Livingston Giffo.rd, for Cowen, pickerson, Nicoll & for defendants. DALLAS, Circuit Judge. claiming to be as· signees and present owners of letters patent No. 252,721, issued to Horace Koechlin on February 14, 1882, for "manufacture of colors Qrdyestuffs," filed their billeharging the defendants with infringement thereof. The latter" by their answer, have set up several de· fenses, including a denial of the infringement alleged. The case thl1s preaentedhas been heard and considered upon the pleadings and probfs, and is now for decision. He who conceives a new method, and by that method produces a . new substance, invents, by one and the same exercise of the creative "'faculty, both a process and a product. The exploit is single, though the achievement is double. The manner of producing and the thing produced may, of course, be separately contemplated, but the inventive 'actfrom which both are derived is not divisible. The fruit is twofold, but the germ is one. This seems to me to be self-evident; bUt, were demonstration required, it would be found in the characteristically vigorous and lucid opinion of Judge Greer in the case of Goodyear v. Railroad Co., 1 Fish. Pat. Cas. 626, Fed. Cas. No. 5,563. But from this unquestioned premise a conclusion was reached in