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2 F.(20) 9 the ingredients must possess certain de- with a small percentage of Portland cescribed characteristics; but after all the in- ment. The gist of the plaintiff's claim is gredients are only a part of the invention that this backing was acid-resisting, and involved in the construction of the inner therefore an infringement. part of the shell, and, in order to answer But, as already indicated, the great weight the prescribed purpose, they must possess of the evidence was the other way—that it certain described plastic, adhesive, cohe- was nonacid-resisting. sive, and acid-resisting characteristics." Defendant's evidence tended to show that Page 401. "Russell, having discovered it relied entirely upon the double acid-proof that his required quality was common to brick wall to prevent the passage of acid cement material generally, still, in the gen- to the steel shell; that in order to construct eral description employed in his specifica- such wall and properly to protect the outtion, limited his claims to such cement mate- er shell from excessive heat, it was necesrials as were acid-resisting.” Page 409. “In sary, or at any rate desirable, to line the our opinion, the patent is valid;

steel shell with some sort of pasty or plas and in our view the patent covers homoge- tic material, and that that was all that it had neous structural linings composed of adhe- done with the lining of the digesters in sive, acid-resisting materials in the nature of question. On that narrow issue of fact the cement, which possess the required quali- plaintiff utterly failed to sustain the burden ties described in the specification.” Page of proof. Indeed, as the trial court found, 410 (25 C. C. A. 515).

at any rate in form, the defendant proved To the same general effect is the decision that these layers were not acid-resisting. of the Circuit Court of Appeals for the It is difficult to see how the District Court Sixth Circuit in Munising Paper Co. v. could have reached any .other conclusion, American Sulphite Pulp Co., 228 F. 700, without finding that several apparently 143 C. C. A. 222, where, after expressing highly reputable witnesses had committed dethe view that “Russell had apparently an liberate perjury. exaggerated idea of the effectiveness and The decree of the District Court is afpermanency of his cementitious mixture as firmed, with costs in this court to the appelan acid-proof agent,” the court said:

lees. “We are satisfied that Russell's cementi

4 a tious lining, as conceived by him, possesses

2

110 ccrt to a substantial degree.

PACIFIC AMERICAN FISHERIES V. TER"In our opinion the Russell patent is val

RITORY OF ALASKA,* id, and must be construed as covering broadly the continuous digester linings composed (Circuit Court of Appeals, Ninth Circuit. Ocof cementitious acid-resisting mixtures ap

tober 20, 1924. Rehearing Denied

November 24, 1924.) plied in a plastic state to the outer metal

No. 4246. shell, and adhering thereto, so as to furnish

EG L Ed. Eri protection to the shell from the acid.” 1. Commerce w63 - Alaska statute taxing Steer:

canneries held not unlawful interference with The question then before the court is

(1. very narrow: Was the District Court wrong corporation. in finding as a fact that in the linings used

Laws Alaska 1921, c. 31, § 1, subd. 8, as by the defendant, “the layers of material amended by Laws 1923, c. 101, imposing license

tax on canneries, is not invalid, as interfernext to the shell were not acid-resisting”! ing with interstate commerce, as applied to The shells in question were, as the over

foreign corporation canning fish for purpose

of transportation and sale outside Alaska. whelming weight of the evidence tended to show, lined by two courses of acid-proof 2. Statutes ww55 - Alaska statute imposing

license tax on fish canneries does not violate commercial bricks, each about 21/2 inches Organic Act. thick, so laid as to break joints. The bricks Laws Alaska 1921, § 1, subd. 8, as amended in each course were jointed together by an

by Laws 1923, c. 101, imposing license tax on

fish canneries, does not violate any provision acid-resistant cement, and in that regard of Organic Act of Alaska (Comp. St. 88 3528– would fall within the express disclaimer in 3544, 3559). Russell's specification, supra. Back of this 3. Licenses El-Alaska cannery license act brickwork, or betwe the courses, were thin does not tax property. , layers of compositions of silicate of soda, Laws Alaska 1921, c. 31, § 1, suhd. 8, as

amended by Laws 1923, c. 101, 'imposing liground slate, litharge, glycerine, plaster of

cense tax on fish canneries, does not tax propparis, and possibly some other materials, erty.

*Certiorari granted 45 S. Ct. 353, 69 L. Ed. ---,

granted

267UJ.S.

ror,

case.

4. Statutes E55 - Alaska act imposing llo

the Session Laws of Alaska of 1923, the foleonse tax on fish canneries held not violation of United States fish laws.

lowing sums : Laws Alaska 1921, c. 31, § 1, subd, 8, as On kings, reds, or sockeye salmon at amended by Laws 1923, c. 101, imposing li- 10 cents per case...

$ 859.00 cense tax on fish canneries, is not invalid, as On medium reds, Cahoes, and pink altering, amending, modifying, or repealing ex- salmon at rate of 442 cents per isting fish laws of United States applicable to Alaska.

case for 48,042 cases....... 2,161.89

An additional 2 cents per case on 5. Licenses em7(4)—Tax imposed on fish can. 15,000 cases....

300.00 neries in Alaska held not unreasonable and An additional 4 cents per case on discriminatory.

the remaining 8,042 cases...... 321.68 Laws Alaska 1921, c. 31, § 1, subd. 8, as On chums at rate of 3 cents per case amended by Laws 1923, c. 101, imposing license for 5,879 cases.

176.37 tax on fish canneries, graduated according to number of cans, held not invalid, as unreasonable and discriminatory.

The plaintiff demurred to the answer,

which set up many grounds not necessary In Error to the District Court of the to be here referred to; the main contention United States for the Territory of Alaska, as stated at the oral argument being that Division No. 1; Thomas M. Reed, Judge. the statute levying the taxes sued for is

void, because contrary to the Constitution Action by the Territory of Alaska against of the United States as well as to the Act the Pacific American Fisheries. Judgment of Congress of August 24, 1912 (37 Stat. for the Territory, and defendant brings er

512 [Comp. St. $$ 3528–3544, 3559]), creAffirmed.

ating a Legislature for the territory, and The plaintiff in error, a corporation of that the classifications contained in the statthe state of Maine, and authorized to con- ute complained of (section 8 of the 1923 duct business in the territory of Alaska, statute) are so unreasonable and discriminawas sued by that territory for the collection tory as to render them void. So far as perof certain graduated license taxes claimed to tinent, section 8 is as follows: be due it from the defendant in the action, "(a) Clam canneries, three (3) cents per because of the canning of certain described salmon subsequent to the 5th day of May, “(b) Salmon canneries: On kings, reds, 1923—the complaint containing four alleged sockeyes, ten (10) cents per case. causes of action; the first growing out of "(c) On a pack of kings, reds and socksuch canning at its cannery at Excursion eyes, counted together, at any one cannery, Inlet, the second at its cannery at Ikatan, an additional tax shall be paid as follows: the third at its cannery at King Cove, and On all cases in excess of ten thousand (10,the fourth at its cannery at Port Moller. 000) and not more than twenty-five thouEach of the counts of the complaint set out sand (25,000), five (5) cents per case; on the quantities of salmon so canned at the re- all cases in excess of twenty-five thousand spective canneries, giving a description of (25,000) and not more than forty thousand the different kinds of fish and the respec- (40,000), ten (10) cents per case; tive amounts remaining due the territory cases in excess of forty thousand (40,000) under its statute of 1923.

and not more than fifty thousand (50,000), It will be sufficient to state the allegations fifteen (15) cents per case; on all cases in of the first count respecting the kinds and excess of fifty thousand (50,000), twenty quantities of fish so canned and the amount (20) cents per case. of taxes remaining due thereon; those stat- "(d) On medium reds, cahoes, and pinks, ed in the other counts being similar. The four and one-half (412) cents per case. first count charges that the defendant to the "(e) On a pack of medium reds, cahoes, action, subsequent to May 5, 1923, packed and pinks, counted together, at any one canand canned at Excursion Inlet “8,950 cases nery, an additional tax shall be paid as folof kings, reds, or sockeyes, 48,042 cases of lows: On all cases in excess of twenty-five medium red, Cahoe and pink salmon, and thousand (25,000) and not more than forty 5,879 cases of chum salmon; that by reason thousand (40,000), two (2) cents per case; of said facts there became due and owing on all cases in excess of forty thousand (40,plaintiff from defendant as a license tax on 000) and not more than fifty thousand (50,said pack, under the provisions of clauses 000), four (4) cents per case; on all cases (b), (c), (d) and (f), subdivision 8, section in excess of fifty thousand (50,000), six (6) 1, chapter 31, of the Session Laws of Alas- cents per case. ka of 1921, as amended by chapter 101 of “(f) On chums, three (3) cents per càse.

on all

2 F.(20) 9 "In addition to the above tax, salmon can- in 1912? We have no doubt that the busineries shall pay one per cent. of their net ness of catching and canning the fish conannual income. The net income shall be de stituted but one business, which business termined in the same manner as the net in- the Legislature of the territory was expresscome is determined under the federal In- ly authorized to tax by the organic act. come Tax Law, except that no deduction That such a tax is not a property tax has shall be allowed on account of interest on been expressly decided, both by this court bonds or money borrowed except on account and by the Supreme Court of the United of other territorial taxes paid.”

States. See Alaska Pacific Fisheries y. TerThe ground upon which it is claimed ritory of Alaska, 236 F. 52, 61, 149 C. C. that this statute contravenes the Constitu- A. 262; Alaska Fish Co. v. Smith, 255 U. tion of the United States is that it is an in- S. 44, 50, 41 S. Ct. 219, 65 L. Ed. 489. terference with interstate commerce, and the In the Alaska Pacific Fisheries Case, suground upon which it is claimed that it is pra, 236 F. 52, 57, 149 C. C. A. 262, wo in conflict with the Organic Act of Alaska further expressly held that one of the puris that its provisions formi the basis of poses conferred by the Organic Act on the the taxes sued for are in contravention of terriorial Legislature was "the creation of that section of the Organic Act of the terri- revenue by imposition of a license tax on tory prohibiting its Legislature from alter- the business of canning" fish. It cannot, ing, amending, modifying, or repealing the therefore, be now held, as plaintiff in error then existing fish and game laws applicable urges should be done, that the purpose of to that territory.

the Legislature in imposing the license taxChickering & Gregory, of San Francisco, es here complained of was a mere regulation Cal., Kerr, McCord & Ivey, of Seattle, of the canning business without overruling Wash., R. E. Robertson and H. L. Faulk- the views of this court heretofore expressed, ner, both of Juneau, Alaska, and Blair S. which we are not disposed to do. In the latShuman, of San Francisco, Cal., for plain- ter case (236 F. 52, 57, 149 C. C. A. 262, tiff in error.

267) we further held that, "when Congress, John Rustgard, of Juneau, Alaska, for de- in 1912, conferred the legislative power fendant in error.

which we have shown exists, while it expressBefore ROSS, HUNT, and RUDKIN, ly withheld power to alter or amend laws Circuit Judges.

pertaining to fish and other certain subjects

and saved certain laws then in force, it nevROSS, Circuit Judge (after stating the ertheless unmistakably transferred power to facts as above). [1] We see no merit in the newly created legislative body to impose the contention that the imposition by the other and additional taxes and licenses; that Legislature of Alaska of the license taxes is, power to impose taxes different from, and in question was in any way an interference it might be additional to, those already in with interstate commerce. True, the plain- force when the Organic Act was approved. tiff in error is a corporation of the state of And thus by the Organic Act those general Maine and engaged in the business of catch- provisions for the protection of the fish ing and canning fish in the waters of that which we find in the act of 1906 were kept territory for the purpose of transporting in force without possibility of alteration, and selling them in states and other places amendment, or repeal by the territorial Legoutside of Alaska; but that no more makes islature, and the specific license tax provided the fish so caught and canned interstate com- by the act of 1906 was kept in force, but merce than would the wheat, barley, corn, with power transferred to the Legislature to wool, or other products of the agriculturists impose, if it should see fit, other and addiand stockraisers of Alaska, or the metals tional license taxes." taken by a citizen of one of the states out [4] We are not able to say that the imof the ground of Alaska thereupon become position by the Legislature of the territory, interstate commerce. When moving in under the authority conferred upon it by transportation from the territory to outside Congress, of the license taxes in question to states, such property undoubtedly thereupon provide necessary revenue, is in any way becomes interstate commerce, but not before. altering, amending, modifying, or repealing This, in our opinion, is very clear.

the then existing fish laws of the United [2,3] Does the statute imposing the taxes States applicable to Alaska. In Alaska Fish in question violate any provision of the or- Co. v. Smith, 255 U. S. 44, 41 S. Ct. 219, ganic Act of Alaska, enacted by Congress 65 L. Ed. 489, the Supreme Court sustained the authority of the Legislature of the terri. 2. Exceptions, bill of 36(1)-Must be for tory to impose a license tax upon the manu

rulings excepted to at trial.

Bill of exceptions, to be valid, must be for facture of oil and fertilizer from fish, hold- rulings excepted to at trial, though bill need ing that the imposition of such a tax was not be formally drawn or signed at time exnot a modifying or repealing of the fish ceptions are noted. laws of the United States; and in the case

3. Exceptions, bill of om 38Bill of exceptions

must be presented to judge of District Court of Haavik v. Alaska Packers' Assn., 263 U. during term at which case was tried. S. 510, 44 S. Ct. 177, 68 L. Ed. 414, the Fact that District Court ordered judgment same court held in effect that the imposition from preserving bill of exceptions during term,

in favor of defendant did not relieve defendant of an annual poll tax and an annual license providing it wished to obtain review of rulings tax on nonresident fishernien in Alaska was

against it during progress of trial, and bill of

exceptions could not be presented two years not a violation of the United States fish later, after reversal. with direction to enter laws.

judgment for plaintiff. Unlimited power to tax an industry in one 4. Appeal and error 537—When exceptions

to rulings at trial can be considered by appelsovereignty seems rather inconsistent with

late court. the reservation of a power to regulate that No exception to rulings at trial can be conindustry by another sovereignty, as the pow- sidered by appellate court, unless it was taken er to tax involves the power to destroy, and ceptions presented to judge at same term, or

at trial and has been embodied in bill of exmay be so exercised as to render any at- within such further term allowed by order' en

tered at that term, or by standing rule of court, tempt at regulation useless and abortive.

or by consent of parties. The question presented by the record in this

5. Appeal and error 555-Matters brought case is, in our opinion, close to the border

up by writ of error after bill of exceptions line; but we are not prepared to say that stricken. the territory has exceeded the limits of its Where judgment was ordered by District

Court for defendant, and on appeal judgment taxing power as heretofore defined by the

was reversed, and District Court was ordered courts.

to enter judgment for plaintiff, and defendant's [5] Nor are we able to agree with coun

bill of exceptions has been stricken because not

presented to District Court in time, writ of sel for the plaintiff in error that the classifi- error does not bring up whole record for excations contained in the act in question are

amination, but only such proceedings as may

have arisen subsequent to mandate. so unreasonable and discriminatory as to render them void. As admitted by the at

In Error to the District Court of the torney for the defendant in they un

United States for the Southern Division of doubtedly discriminate in favor of small the Southern District of California. canneries and against the large ones. In Patton v. Brady, 184 U. S. 608, 623, 22 S.

Action at law by C. J. Nichols against the Ct. 493, 498 (46 L. Ed. 713, the Supreme Atchison, Topeka & Santa Fé Railway ComCourt said: “It is not the province of the

pany. Judgment for plaintiff, and defend

Bill of exceptions strickjudiciary to inquire whether the excise is ant brings error. reasonable in amount, or in respect to the

en, and writ dismissed. property to which it is applied. Those are E. W. Camp, Robert Brennan, M. W. matters in respect to which the legislative Reed, and E. T. Lucey, all of Los Angeles, determination is final.” See Giozza v. Tier- Cal., for plaintiff in error. nan, 148 U. S. 657, 661, 662, 13 S. Ct. 721, Milton K. Young, Lyndol L. Young, and 37 L. Ed. 599.

Wm. K. Young, all of Los Angeles, Cal., The judgment is affirmed.

for defendant in error.

Before GILBERT, ROSS, and HONT, Circuit Judges.

error,

HUNT, Circuit Judge. In April, 1922, ATCHISON, T. & S. F. RY. CO. v. NICHOLS. Nichols, defendant in error, brought action (Circuit Court of Appeals, Ninth Circuit.

against the railway company, plaintiff in October 27, 1924.)

error, to recover damages for the death of No. 4327.

his wife while a passenger on a train of the 1. Appeal and error w248-Essential purposo denying negligence, and a jury having been

railway company. The defendant answered, of exception.

Essential purpose of exception is to direct waived by stipulation of the parties, the mind of trial judge to single and precise point court made findings to the effect that the alof law, so that he may consider and change legations of the complaint and the amendhis ruling, if satisfied of error.

ment thereto were true, except as to the 2 F.(20) 12 amount of damages; that the allegations of he may reconsider and change his ruling, the answer were not true. However, as a if satisfied of error, and that injustice and conclusion of law, the court, on June 6, mistrials due to inadvertent errors may be 1922, adjudged that plaintiff take nothing obviated. United States v. U. S. Fidelity by his action. Upon review of that judg- Co., 236 U. S. 512, 35 S. Ct. 298, 59 L. Ed. ment it was held that under section 1820 of 696; Fillippon v. Albion Vein Slate Co., 250 the Statutes of New Mexico, which provides U. S. 76, 39 S. Ct. 435, 63 L. Ed. 853. It that any railway company, through the neg- is also well settled that a bill of exceptions, ligence or wrongful act of whose agents or to be valid, must be for rulings excepted to servants a passenger is injured, resulting at the trial. The bill need not be formally in death, shall pay $5,000, to be recovered drawn and signed at the time the exceptions by action by the husband or wife, an action are noted, but it must appear that they were for recovery may be maintained in a feder- reserved during the progress of the trial. al court in a district of California, and that Johnson v. Garber, 73 F. 523, 19 C. C. A. a state statute giving a right of action for 556. wrongful death which fixes the amount re- In the record before us there is nothing to coverable becomes a limitation which inheres indicate that any bill of exceptions was prein the remedy. Accordingly the judgment of sented to the judge of the District Court, or the District Court in favor of the defendant settled during the term at which the case company was rever

versed, with directions to the was tried, or at all, until after the entry of District Court to enter judgment in favor of judgment of this court as affirmed by the the plaintiff for $5,000, with costs in both Supreme Court on June 2, 1924. Nor was courts. Nichols v. Atchison, Topeka & Santa any order of court made extending the term Fé (C. C. A.) 286 F.1. Certiorari was grant- of court beyond the usual time provided by ed, and in Atchison, Topeka & Santa Fé v. the rules of the court. The fact that in Nichols, 264 U. S. 348, 44 S. Ct. 356, 68 L. 1922 the District Court ordered judgment in Ed. 720, the Supreme Court affirmed the favor of the railway company did not rejudgment of the Circuit Court of Appeals. lieve the plaintiff in error from preserving Thereafter in the District Court, upon re- a bill of exceptions, provided it wished to ceipt of the mandate of the Supreme Court, obtain a review of rulings against it during on June 2, 1924, judgment was entered in the progress of the trial. The Supreme favor of Nichols for $5,000 and costs. On Court has recently said that no exception to June 3, 1924, counsel for the Railway Com- the rulings at the trial can be considered by pany served upon counsel for Nichols a the Appellate Court, unless it was taken at -copy of a proposed bill of exceptions con- the trial and has been embodied in a bill of taining the testimony, rulings, and motions exceptions presented to the judge at the same given and made during the trial of the ac- term, or within such further term allowed tion in 1922, and on June 6, 1924, lodged by order entered at that term, or by a standthe same with the District Court for settle- ing rule of court, or by consent of the parment. Over objections filed by counsel for ties. Exporters v. Butterworth-Judson Co., Nichols, the District Judge, on June 22, 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 1924, allowed and settled the bill, and by 663. It follows that, inasmuch as the term writ of error the case is again brought to of court at which trial was had has long this court.

since expired, and, there being no showing Counsel for Nichols moves to strike the that the court retained control over the bill of exceptions from the transcript, upon case by a standing rule or special order, the ground that no bill of exceptions was there was no authority in the District Court, prepared, filed, or settled during the term after remand by the Supreme Court, to alof the District Court in which the case was low the bill of exceptions presented by the tried, and that no extension of time was railway company. See United States v. granted by the court in which to prepare, Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. serve, or settle a bill of exceptions, and that 129; Greyerbiehl v. Hughes Electric Co. the District Court was without power to (C. C. A.) 294 F. 802. settle a bill of exceptions two years after Plaintiff in error cites the opinion of this the close of the term.

court in Pacific Bank v. Hannah, 90 F. 72, [1-4] The motion to strike is well taken. 32 C. C. A. 522, where it was said that the The essential purpose of an exception is to bill of exceptions, having been filed within direct the mind of the trial judge to a sin- the term at which judgment was rendered, gle and precise point in which it is believed was sufficient to preserve the rights of a he has committed an error of law, so that party presenting the bill of exceptions for

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