Sweatt v. The Boston, Hartford, and Erie Railroad Company et al.

that the States cannot tax the means or instruments of the United States, nor can Congress tax the means or instruments of the State governments. By the word "means " is meant the revenue, taxes, and public securities, as applied both to the United States and the several States, and the prohibition extends to the salaries of the executive and judicial officers and to the compensation of Senators, members of Congress, and to that of members of the State legislatures. Officers whose compensation is derived from fees paid by those transacting business with the office stand upon a different footing, but the question whether such compensations fall within the reciprocal exemption is not involved in this case. Even less difficulty is felt in giving examples of what is meant by the instruments of government, as that phrase is used in decided cases. Austin v. Aldermen, 7 Wall. 699; Hamilton County v. Massachusetts, 6 Wall. 639; Society for Savings v. Coite, 6 Wall. 604.

Instruments of government, such as are referred to, are the officers, as such, executive, legislative, and judicial, appointed or chosen to enact, execute, and expound the laws, and the public buildings erected and occupied for the uses of the government. Federal machinery is much more multifarious than that of the States, as the government of the United States is charged with the national defence, and of course our forts, navy-yards, public ships, and the like, fall within the exemption. Public corporations also fall within that exemption, but railways are private corporations, just as much as steamship and steamboat companies or canal corporations, where the stock belongs to the corporators, or as much as moneyed, manufacturing, or business corporations, all of which are created to promote the public good. Doubtless, some such corporations are more convenient and useful than others; but the question before the court is not affected by the degree of importance which attaches to the corporation. Private corporations are not instruments of the State governments, and it is settled law that railways are private corporations, as appears by many decisions of the highest character. Dartmouth College v. Woodward, 4 Wheat. 669. State governments sometimes become partners in such corporations, but the State does not, by becoming a corpo

Sweatt v. The Boston, Hartford, and Erie Railroad Company et al. rator, identify itself with the corporation. Instead of that the State, in such a case, divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. United States Bank v. Planters' Bank, 9 Wheat. 907; Union Pacific Railroad v. Lincoln County, 10 Am. L. Reg. N. S. 461. Apart from that proposition of the petitioner, the authority of Congress to subject railroad corporations to the provisions of the Bankrupt Act is also denied, because it is insisted that such a corporation cannot, without distinct legislative authority, make any alienation, absolute or conditional, either of the general franchise to be a corporation, or of the subordinate franchise to manage and carry on its corporate business. Suppose it to be correct that a railroad corporation may not by its own act alienate any of its franchises, either the franchise to exist as such, or the franchise to accomplish the objects for which it was created, still it is conceded that it may transfer the same if so authorized by the State, and it is difficult to see, if the corporation is a private corporation, why the necessary power to enable the District Court or the register, as the case may be, to make the transfer, may not be conferred by Congress, as it is conceded that the exclusive power to establish a uniform system of bankruptcy is vested in the national legislature. 14 Stat. at Large, 522.

Express power is given to Congress to establish such a law, and the Constitution also provides that Congress may "make all laws which shall be necessary and proper for carrying into execution the foregoing powers," and it is clear that one of the powers previously granted is the power to pass such a law. Pursuant to that power, Congress has, in effect, provided that the commercial corporations shall be subject to the Bankrupt Act, and that all the provisions of the act applicable to the debtor, or which set forth his duties in regard to furnishing schedules and inventories, executing papers, submitting to examinations, disclosing, making over, secreting, concealing, conveying, assigning, or paying away his money or property, shall, in like manner and with like force, effect, and penalties, apply to each and every officer of such corporation or company

Sweatt v. The Boston, Hartford, and Erie Railroad Company et al.

in relation to the same matter concerning the corporation or company, and their money and property. Prior to that clause, the same section enacts that "like proceedings shall be had and taken "as are provided in the case of debtors, and the section concludes with the enactment that all property and assets of the corporation shall be distributed to the creditors of such corporations in the manner provided in this act in respect to natural persons." More satisfactory regulations for administering the Bankrupt Act than are found in the existing law could not well be framed; and the court, having come to the conclusion that such a corporation is a private corporation, is entirely satisfied that the section of the act which provides that the act shall apply to such a corporation is a valid law. But suppose that the franchise to be a corporation, unless assignable by the laws of the State, is not transmissible under the Bankrupt Act, still it is unquestionably true, as was held by the District Court in this case, that the franchise to build, own, and manage a railroad, and all the property of the company, are alienable and subject to sale and transfer under the laws of the State which created the corporation. Hall v. Sullivan Railroad, 21 Law Rep. 140. Union Pacific Railroad v. Lincoln County, 10 Am. L. Reg. N. S. 464. Much discussion, however, of that point is unnecessary, as the court here concurs entirely upon that topic with the views expressed by the Circuit judge in disposing of the case in the District Court. Adams v. Railroad Co., 4 B. R. 99.

Extended argument to show that the third proposition of the petitioner cannot be sustained is unnecessary, as the theory of fact assumed in the proposition is erroneous, as appears by the evidence exhibited at the hearing. All the property and assets of the company had not been previously transferred to receivers appointed under a decree passed by the Supreme Court of the State, which is all that need be said upon the subject. Petition for revision denied.

Carew et al. v. The Boston Elastic Fabric Company.

JAMES S. CAREW et al. v. THE BOSTON ELASTIC FABRIC COMPANY.

Where an original patentee has deceased and his estate is under administration, his execu⚫tor or administrator may make a surrender and obtain a reissue.

The commissioner may allow the original specification to be amended in the reissue, and he may permit the applicant for a reissue to redescribe his invention, including in the new description and claims not only what was well described before, but also what was suggested or indicated in the original specification drawings or patent-office model. New features, ingredients, or devices, neither described, suggested, or indicated in the original specification or model, cannot be embodied in the new description. An inventor described his improvement in his original patent as a process for working over vulcanized rubber and moulding it into any desired shape; and stated that in carrying the process into effect many foreign articles of less cost than rubber could be incorporated so as to produce a substance having all the valuable properties of vulcanized rubber at such reduced cost as to admit of its being applied to many more useful purposes. The description in a reissue stated that the principal features of the process consisted in applying heat by means of steam to rubber mixed with substances commonly used in vulcanizing rubber, or to rubber compound which has once been vulcanized either with or without the addition of fresh rubber, the same, whether the rubber or the compound, is or not pressed into moulds or dies of the desired form, and the steam introduced into steam-chambers or steam-jackets, and thereby conducted around the moulds or dies which come in contact with the compound to be moulded into the desired form. The corresponding passage in the original specification was in effect that the principal features of the new process consisted in applying heat either to rubber in its native state, or to rubber with the substances commonly used in vulcanizing rubber which has once been vulcanized by means of steam. The description further stated that the rubber compound while being heated was pressed into moulds or dies to give it the desired form. Also that the steam was conducted around all portions of the moulds or dies which come in contact with the rubber or compound to be moulded. Also, by this means the process of curing rubber was greatly facilitated, and vulcanized rubber which had before resisted all attempts to remould it was readily pressed into any desired shape. Held, that the substance of the two descriptions in these portions was the same, and that the original one sustained that of the reissue.

It is the duty of the court to collect the intention and meaning of the inventor from the whole specification, and, if practicable, to adopt such a construction as will render the patent available for the purpose for which it was granted.

It was held that the reissued patent did not embrace the invention of Charles Goodyear, which was for curing the native rubber when combined with or in the presence of sulphur by submitting the same to a high degree of artificial heat, and also for a manufacture called vulcanized India-rubber, being a compound of India-rubber with sulphur chemically altered by a high degree of heat, because that invention was disclaimed in the original specification, and it was stated to be the chief feature of the invention to cure again vulcanized rubber and mould it into any desired shape, and because the reissue also stated that the value of vulcanized rubber ceased when the article made out of it was worn out, and that foreign substances might be mixed with rubber compound so as to form a substance having the properties of vulcanized rubber, but composed of cheaper materials.

Carew et al. v. The Boston Elastic Fabric Company.

Where one paragraph in a reissue specification would seem to lead to a construction which would make void the reissue, explanation of its meaning may be sought in a succeeding one.

Where the process and purpose are plainly suggested and understood, and the language in an original specification is suggestive of new terms and names used in the reissue, such new names and terms do not show that the reissue is descriptive of an invention different from that set out in the original.

The correct practice is, where infringement to any extent is admitted, if the patent is held to be valid, to enter an interlocutory decree for complainant and send the cause to a master to ascertain the amount the complainant is entitled to recover.

Under the act of July 8, 1870, where a decree is entered for complainant, he may recover, in addition to the profits to be accounted for by the respondent, the damages he has sustained, and the court may in its discretion assess the same.

Profits are to be accounted for in such case by the respondent wherever the decretal order to that effect is entered, and if the injuries sustained by the complainant from the infringement are greater than the gains and profits realized by the respondent, then the complainant is entitled to recover compensation for the excess of the injuries beyond the amount estimated for profits of the respondent.

Actual damages are assessed in the first instance, but the court may in its discretion increase the amount to a sum not exceeding three times the amount estimated and assessed as the actual damages sustained beyond the gains and profits realized by the respondent.

On the 29th of August, 1854, letters-patent were granted to Daniel Hayward, since deceased, for certain new and useful improvements in the manufacture and in the process of manufacturing vulcanized rubber, for the term of fourteen years, and on the 28th of August, 1868, the letters-patent were extended in the name of the executor of the patentee for the further term of seven years from the expiration of the original term of the letters-patent. Subsequent to the extension of the patent, to wit, on the 15th of December in the same year, the executor of the original patentee, by deed of assignment in due form, conveyed all his right, title, and interest in the letters-patent to the firstnamed complainant, through whom, by virtue of certain agreements, the other complainants derived their titles. By virtue of that conveyance the legal title to the letters-patent became vested in the assignee, and the record showed that he, on the 6th of July, 1869, surrendered the letters-patent on account of a defective or insufficient specification, and that a new patent was issued to the same party, and, as the complainant alleged, for the same invention. They also alleged that the original patentee was the original and first inventor of the improvement; that they, the complainants, were the owners of the reissued letters-patent, and