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2 F.(2d) 9

But, as already indicated, the great weight of the evidence was the other way-that it was nonacid-resisting.

the ingredients must possess certain de- with a small percentage of Portland ce-
scribed 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
the prescribed purpose, they must possess
certain described plastic, adhesive, cohe-
sive, and acid-resisting characteristics."
Page 401. "Russell, having discovered
that his required quality was common to
cement material generally, still, in the gen-
eral description employed in his specifica-
tion, limited his claims to such cement mate-
rials as were acid-resisting." Page 409. "In
our opinion, the patent is valid;

and in our view the patent covers homogeneous structural linings composed of adhesive, acid-resisting materials in the nature of cement, which possess the required qualities described in the specification." Page 410 (25 C. C. A. 515).

To the same general effect is the decision of the Circuit Court of Appeals for the Sixth Circuit in Munising Paper Co. v. American Sulphite Pulp Co., 228 F. 700, 143 C. C. A. 222, where, after expressing the view that "Russell had apparently an exaggerated idea of the effectiveness and permanency of his cementitious mixture as an acid-proof agent," the court said:

Defendant's evidence tended to show that it relied entirely upon the double acid-proof brick wall to prevent the passage of acid to the steel shell; that in order to construct such wall and properly to protect the outer shell from excessive heat, it was necessary, or at any rate desirable, to line the steel shell with some sort of pasty or plastic material, and that that was all that it had done with the lining of the digesters in question. On that narrow issue of fact the plaintiff utterly failed to sustain the burden of proof. Indeed, as the trial court found, at any rate in form, the defendant proved that these layers were not acid-resisting.

It is difficult to see how the District Court could have reached any other conclusion, without finding that several apparently highly reputable witnesses had committed deliberate perjury.

The decree of the District Court is affirmed, with costs in this court to the appellees.

ax. t d 4 9 2 1 1 AG TE LED. tup Ct. 110, cort

"We are satisfied that Russell's cementitious lining, as conceived by him, possesses practical utility and acid-resisting qualities 27046 to a substantial degree.

"In our opinion the Russell patent is valid, and must be construed as covering broadly the continuous digester linings composed of cementitious acid-resisting mixtures applied in a plastic state to the outer metal shell, and adhering thereto, so as to furnish protection to the shell from the acid."

The question then before the court is very narrow: Was the District Court wrong in finding as a fact that in the linings used by the defendant, "the layers of material next to the shell were not acid-resisting" The shells in question were, as the overwhelming weight of the evidence tended to show, lined by two courses of acid-proof commercial bricks, each about 21⁄2 inches thick, so laid as to break joints. The bricks in each course were jointed together by an acid-resistant cement, and in that regard would fall within the express disclaimer in Russell's specification, supra. Back of this brickwork, or between the courses, were thin layers of compositions of silicate of soda, ground slate, litharge, glycerine, plaster of paris, and possibly some other materials,

PACIFIC AMERICAN FISHERIES v. TER-
RITORY OF ALASKA.*

(Circuit Court of Appeals, Ninth Circuit. Oc-
tober 20, 1924. Rehearing Denied
November 24, 1924.)

No. 4246.

1. Commerce 63 Alaska statute taxing
canneries held not unlawful interference with
interstate commerce, as applied to foreign
corporation.

Laws Alaska 1921, c. 31, § 1, subd. 8, as
amended by Laws 1923, c. 101, imposing license
tax on canneries, is not invalid, as interfer-
ing with interstate commerce, as applied to
foreign corporation canning fish for purpose
of transportation and sale outside Alaska.

2. Statutes 55- Alaska statute imposing
license tax on fish canneries does not violate
Organic Act.

Laws Alaska 1921, § 1, subd. 8, as amended
by Laws 1923, c. 101, imposing license tax on
fish canneries, does not violate any provision
of Organic Act of Alaska (Comp. St. §§ 3528-
3544, 3559).

3. Licenses

-Alaska cannery license act does not tax property..

Laws Alaska 1921, c. 31, § 1, subd. 8, as amended by Laws 1923, c. 101, imposing license tax on fish canneries, does not tax property.

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

Granted

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4. Statutes 55 - Alaska act imposing Ileense tax on fish canneries held not violation of United States fish laws.

Laws Alaska 1921, c. 31, § 1, subd. 8, as amended by Laws 1923, c. 101, imposing license tax on fish canneries, is not invalid, as altering, amending, modifying, or repealing existing fish laws of United States applicable to Alaska.

5. Licenses 7(4)-Tax imposed on fish canneries in Alaska held not unreasonable and discriminatory.

Laws Alaska 1921, c. 31, § 1, subd. 8, as amended by Laws 1923, c. 101, imposing license tax on fish canneries, graduated according to number of cans, held not invalid, as unreasonable and discriminatory.

In Error to the District Court of the United States for the Territory of Alaska, Division No. 1; Thomas M. Reed, Judge. Action by the Territory of Alaska against the Pacific American Fisheries. Judgment for the Territory, and defendant brings er

ror. Affirmed.

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The plaintiff in error, a corporation of the state of Maine, and authorized to conduct business in the territory of Alaska, was sued by that territory for the collection of certain graduated license taxes claimed to be due it from the defendant in the action, because of the canning of certain described salmon subsequent to the 5th day of May, 1923-the complaint containing four alleged causes of action; the first growing out of such canning at its cannery at Excursion Inlet, the second at its cannery at Ikatan, the third at its cannery at King Cove, and the fourth at its cannery at Port Moller. Each of the counts of the complaint set out the quantities of salmon so canned at the respective canneries, giving a description of the different kinds of fish and the respective amounts remaining due the territory under its statute of 1923.

It will be sufficient to state the allegations of the first count respecting the kinds and quantities of fish so canned and the amount of taxes remaining due thereon; those stated in the other counts being similar. The first count charges that the defendant to the action, subsequent to May 5, 1923, packed and canned at Excursion Inlet "8,950 cases of kings, reds, or sockeyes, 48,042 cases of medium red, Cahoe and pink salmon, and 5,879 cases of chum salmon; that by reason of said facts there became due and owing plaintiff from defendant as a license tax on said pack, under the provisions of clauses (b), (c), (d) and (f), subdivision 8, section 1, chapter 31, of the Session Laws of Alaska of 1921, as amended by chapter 101 of

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The plaintiff demurred to the answer, which set up many grounds not necessary to be here referred to; the main contention as stated at the oral argument being that the statute levying the taxes sued for is void, because contrary to the Constitution of the United States as well as to the Act of Congress of August 24, 1912 (37 Stat. 512 [Comp. St. §§ 3528-3544, 3559]), creating a Legislature for the territory, and that the classifications contained in the statute complained of (section 8 of the 1923 statute) are so unreasonable and discriminatory as to render them void. So far as pertinent, section 8 is as follows:

"(a) Clam canneries, three (3) cents per

case.

"(b) Salmon canneries: On kings, reds, sockeyes, ten (10) cents per case.

"(c) On a pack of kings, reds and sockeyes, counted together, at any one cannery, an additional tax shall be paid as follows: On all cases in excess of ten thousand (10,000) and not more than twenty-five thousand (25,000), five (5) cents per case; on all cases in excess of twenty-five thousand (25,000) and not more than forty thousand (40,000), ten (10) cents per case; cases in excess of forty thousand (40,000) and not more than fifty thousand (50,000), fifteen (15) cents per case; on all cases in excess of fifty thousand (50,000), twenty (20) cents per case.

on all

"(d) On medium reds, cahoes, and pinks, four and one-half (42) cents per case.

"(e) On a pack of medium reds, cahoes, and pinks, counted together, at any one cannery, an additional tax shall be paid as follows: On all cases in excess of twenty-five thousand (25,000) and not more than forty thousand (40,000), two (2) cents per case; on all cases in excess of forty thousand (40,000) and not more than fifty thousand (50,000), four (4) cents per case; on all cases in excess of fifty thousand (50,000), six (6) cents per case.

"(f) On chums, three (3) cents per case.

2 F.(2d) 9

"In addition to the above tax, salmon canneries shall pay one per cent. of their net annual income. The net income shall be determined in the same manner as the net income is determined under the federal Income Tax Law, except that no deduction shall be allowed on account of interest on bonds or money borrowed except on account of other territorial taxes paid."

The ground upon which it is claimed that this statute contravenes the Constitution of the United States is that it is an interference with interstate commerce, and the ground upon which it is claimed that it is in conflict with the Organic Act of Alaska is that its provisions forming the basis of the taxes sued for are in contravention of that section of the Organic Act of the territory prohibiting its Legislature from altering, amending, modifying, or repealing the then existing fish and game laws applicable to that territory.

Chickering & Gregory, of San Francisco, Cal., Kerr, McCord & Ivey, of Seattle, Wash., R. E. Robertson and H. L. Faulkner, both of Juneau, Alaska, and Blair S. Shuman, of San Francisco, Cal., for plaintiff in error.

John Rustgard, of Juneau, Alaska, for defendant in error.

Before ROSS, HUNT, and RUDKIN, Circuit Judges.

ROSS, Circuit Judge (after stating the facts as above). [1] We see no merit in the contention that the imposition by the Legislature of Alaska of the license taxes in question was in any way an interference with interstate commerce. True, the plaintiff in error is a corporation of the state of Maine and engaged in the business of catching and canning fish in the waters of that territory for the purpose of transporting and selling them in states and other places outside of Alaska; but that no more makes the fish so caught and canned interstate commerce than would the wheat, barley, corn, wool, or other products of the agriculturists and stockraisers of Alaska, or the metals taken by a citizen of one of the states out of the ground of Alaska thereupon become interstate commerce. When moving in transportation from the territory to outside states, such property undoubtedly thereupon becomes interstate commerce, but not before. This, in our opinion, is very clear.

[2, 3] Does the statute imposing the taxes in question violate any provision of the organic Act of Alaska, enacted by Congress

in 1912? We have no doubt that the business of catching and canning the fish constituted but one business, which business the Legislature of the territory was expressly authorized to tax by the organic act. That such a tax is not a property tax has been expressly decided, both by this court and by the Supreme Court of the United States. See Alaska Pacific Fisheries v. Territory of Alaska, 236 F. 52, 61, 149 C. C. A. 262; Alaska Fish Co. v. Smith, 255 U. S. 44, 50, 41 S. Ct. 219, 65 L. Ed. 489.

In the Alaska Pacific Fisheries Case, supra, 236 F. 52, 57, 149 C. C. A. 262, we further expressly held that one of the purposes conferred by the Organic Act on the terriorial Legislature was "the creation of revenue by imposition of a license tax on the business of canning" fish. It cannot, therefore, be now held, as plaintiff in error urges should be done, that the purpose of the Legislature in imposing the license taxes here complained of was a mere regulation of the canning business without overruling the views of this court heretofore expressed, which we are not disposed to do. In the latter case (236 F. 52, 57, 149 C. C. A. 262, 267) we further held that, "when Congress, in 1912, conferred the legislative power which we have shown exists, while it expressly withheld power to alter or amend laws pertaining to fish and other certain subjects and saved certain laws then in force, it nevertheless unmistakably transferred power to the newly created legislative body to impose other and additional taxes and licenses; that is, power to impose taxes different from, and it might be additional to, those already in force when the Organic Act was approved. And thus by the Organic Act those general provisions for the protection of the fish which we find in the act of 1906 were kept in force without possibility of alteration, amendment, or repeal by the territorial Legislature, and the specific license tax provided by the act of 1906 was kept in force, but with power transferred to the Legislature to impose, if it should see fit, other and additional license taxes."

[4] We are not able to say that the imposition by the Legislature of the territory, under the authority conferred upon it by Congress, of the license taxes in question to provide necessary revenue, is in any way altering, amending, modifying, or repealing the then existing fish laws of the United States applicable to Alaska. In Alaska Fish Co. v. Smith, 255 U. S. 44, 41 S. Ct. 219, 65 L. Ed. 489, the Supreme Court sustained

the authority of the Legislature of the territory to impose a license tax upon the manufacture of oil and fertilizer from fish, holding that the imposition of such a tax was not a modifying or repealing of the fish laws of the United States; and in the case of Haavik v. Alaska Packers' Assn., 263 U. S. 510, 44 S. Ct. 177, 68 L. Ed. 414, the same court held in effect that the imposition of an annual poll tax and an annual license tax on nonresident fishermen in Alaska was not a violation of the United States fish laws.

Unlimited power to tax an industry in one sovereignty seems rather inconsistent with the reservation of a power to regulate that industry by another sovereignty, as the power to tax involves the power to destroy, and may be so exercised as to render any attempt at regulation useless and abortive. The question presented by the record in this. case is, in our opinion, close to the border line; but we are not prepared to say that the territory has exceeded the limits of its taxing power as heretofore defined by the

courts.

[5] Nor are we able to agree with counsel for the plaintiff in error that the classifications contained in the act in question are so unreasonable and discriminatory as to render them void. As admitted by the attorney for the defendant in error, they undoubtedly discriminate in favor of small canneries and against the large ones. In Patton v. Brady, 184 U. S. 608, 623, 22 S. Ct. 493, 498 (46 L. Ed. 713, the Supreme Court said: "It is not the province of the judiciary to inquire whether the excise is reasonable in amount, or in respect to the property to which it is applied. Those are matters in respect to which the legislative determination is final." See Giozza v. Tiernan, 148 U. S. 657, 661, 662, 13 S. Ct. 721, 37 L. Ed. 599.

The judgment is affirmed.

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2. Exceptions, bill of 36(1)-Must be for rulings excepted to at trial.

rulings excepted to at trial, though bill need Bill of exceptions, to be valid, must be for not be formally drawn or signed at time exceptions are noted.

3. Exceptions, bill of 38-Bill of exceptions must be presented to judge of District Court during term at which case was tried.

Fact that District Court ordered judgment from preserving bill of exceptions during term, in favor of defendant did not relieve defendant providing it wished to obtain review of rulings against it during progress of trial, and bill of exceptions could not be presented two years later, after reversal, with direction to enter judgment for plaintiff.

4. Appeal and error 537-When exceptions to rulings at trial can be considered by appellate court.

No exception to rulings at trial can be con

sidered by appellate court, unless it was taken ceptions presented to judge at same term, or within such further term allowed by order entered at that term, or by standing rule of court, or by consent of parties. 5. Appeal and error

at trial and has been embodied in bill of ex

555-Matters brought up by writ of error after bill of exceptions stricken.

Where judgment was ordered by District Court for defendant, and on appeal judgment was reversed, and District Court was ordered to enter judgment for plaintiff, and defendant's bill of exceptions has been stricken because not presented to District Court in time, writ of error does not bring up whole record for examination, but only such proceedings as may have arisen subsequent to mandate.

In Error to the District Court of the United States for the Southern Division of the Southern District of California.

Action at law by C. J. Nichols against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Bill of exceptions stricken, and writ dismissed.

E. W. Camp, Robert Brennan, M. W. Reed, and E. T. Lucey, all of Los Angeles, Cal., for plaintiff in error.

Milton K. Young, Lyndol L. Young, and Wm. K. Young, all of Los Angeles, Cal., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT, Circuit Judge. In April, 1922, Nichols, defendant in error, brought action against the railway company, plaintiff in error, to recover damages for the death of his wife while a passenger on a train of the railway company. The defendant answered, denying negligence, and a jury having been waived by stipulation of the parties, the court made findings to the effect that the allegations of the complaint and the amendment thereto were true, except as to the

2 F.(2d) 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 recoverable becomes a limitation which inheres in the remedy. Accordingly the judgment of the District Court in favor of the defendant company was reversed, with directions to the District Court to enter judgment in favor of the plaintiff for $5,000, with costs in both courts. Nichols v. Atchison, Topeka & Santa Fé (C. C. A.) 286 F. 1. Certiorari was granted, and in Atchison, Topeka & Santa Fé v. Nichols, 264 U. S. 348, 44 S. Ct. 356, 68 L. Ed. 720, the Supreme Court affirmed the judgment of the Circuit Court of Appeals. Thereafter in the District Court, upon receipt of the mandate of the Supreme Court, on June 2, 1924, judgment was entered in favor of Nichols for $5,000 and costs. On June 3, 1924, counsel for the Railway Company served upon counsel for Nichols a copy of a proposed bill of exceptions containing the testimony, rulings, and motions given and made during the trial of the action in 1922, and on June 6, 1924, lodged the same with the District Court for settlement. Over objections filed by counsel for Nichols, the District Judge, on June 22, 1924, allowed and settled the bill, and by writ of error the case is again brought to this court.

Counsel for Nichols moves to strike the bill of exceptions from the transcript, upon the ground that no bill of exceptions was prepared, filed, or settled during the term of the District Court in which the case was tried, and that no extension of time was granted by the court in which to prepare, serve, or settle a bill of exceptions, and that the District Court was without power to settle a bill of exceptions two years after the close of the term.

[1-4] The motion to strike is well taken. The essential purpose of an exception is to direct the mind of the trial judge to a single and precise point in which it is believed he has committed an error of law, so that

In the record before us there is nothing to indicate that any bill of exceptions was presented to the judge of the District Court, or settled during the term at which the case was tried, or at all, until after the entry of judgment of this court as affirmed by the Supreme Court on June 2, 1924. Nor was any order of court made extending the term of court beyond the usual time provided by the rules of the court. The fact that in 1922 the District Court ordered judgment in favor of the railway company did not relieve the plaintiff in error from preserving a bill of exceptions, provided it wished to obtain a review of rulings against it during the progress of the trial. The Supreme Court has recently said that no exception to the rulings at the trial can be considered by the Appellate Court, unless it was taken at the trial and has been embodied in a bill of exceptions presented to the judge at the same term, or within such further term allowed by order entered at that term, or by a standing rule of court, or by consent of the parties. Exporters v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663. It follows that, inasmuch as the term of court at which trial was had has long since expired, and, there being no showing that the court retained control over the case by a standing rule or special order, there was no authority in the District Court, after remand by the Supreme Court, to allow the bill of exceptions presented by the railway company. See United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129; Greyerbiehl v. Hughes Electric Co. (C. C. A.) 294 F. 802.

Plaintiff in error cites the opinion of this court in Pacific Bank v. Hannah, 90 F. 72, 32 C. C. A. 522, where it was said that the bill of exceptions, having been filed within the term at which judgment was rendered, was sufficient to preserve the rights of a party presenting the bill of exceptions for

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