2 F.(2d) 73 not rely solely upon the theory of acquisi- consideration of the general benefit to the tion of a mining claim through purchase public at large and that no direct consideraand sale, but assert that the mineral claimant tion passes from the locator and discoverer in this case may have acquired her title by to the government, we come to consider the occupancy, and advance in their brief the theory of the defendant, that the transacfollowing ingenious argument to that end: tion is in the nature of a gift. Funk & "As has already been shown if this title Wagnall's New Standard Dictionary, 1923, was acquired by alienation it was acquired defines "gift" as follows: "That which is by sale and not by gift. However, it is given; something voluntarily bestowed withperhaps more nearly correct to say that she out expectation of return; a donation; acquired her title by occupancy. It is true present." Bouvier's Law Dictionary says as that title by occupancy cannot be acquired to its legal meaning: "A voluntary conveyunless the property occupied is without an ance; that is, a conveyance not founded on owner, and that the public domain is of the consideration of money or blood." course not without an owner. It may be considered, however, that Congress by the act involved has abandoned its rights in oil and precious metals to the discoverer and that title to the discoverer comes by virtue of his occupancy." The difficulty with this argument is that in its inception it begs the question, in that it admits that title by occupancy cannot be acquired unless it is without an owner. Certainly the mineral resources of the country are not without an owner, as Congress in section 2319, supra, has declared that mineral deposits belong to the United States. In support of their contention counsel themselves quote from Burns v. Schoenfeld, 1 Cal. App. 121, 81 P. 713, in which opinion the following language is used: "That where things are found that have no owner they belong, as in a state of nature, to the first occupant or fortunate finder." That court relies upon Blackstone and Kent to sustain the above conclusion. As to the theory that the government has abandoned its rights in oils and precious metals to the discoverer, the doctrine of abandonment as laid down in the books is diametrically opposed in this kind of case by the fact that the government by legislation has exercised a direct and affirmative control over its mineral possessions. This court is impressed with the idea that the term "occupancy" as used in the books concerning mineral claims does not refer to the generally accepted use of the term "occupancy" as applied to the acquiring of title to property, but more particularly to one of the necessary elements in holding rights which have been acquired by discovery. Having arrived at the conclusion that the transaction involved does not partake of the nature of a sale, in that the term "purchase," as found in the statute, has been applied to the procedure for patent, and that neither can it be sustained upon the In most respects, at least, the transaction involved here would seem to come within the scope of the latter definition. No analogous case has been cited, nor has any been found, which would serve as a full and complete example in sustaining the theory that the transaction is in the nature of a gift. One that is at least persuasive is that of Barnes v. Poirier, 64 F. 14, 12 C. C. A. 9, in our own circuit, in which Judge Sanborn construed what is known as the "soldiers' additional homestead rights" (commonly known in the Western country as "soldier scrip"), which were those rights of additional entry granted to the soldiers of the Civil War who had already made homestead entry of a limited acreage. Here the court, in following a long line of decisions, held that the grant was absolute and assignable, and in the nature of a gift, using the following language at page 18 (12 C. C. A. 13): "It was an unfettered gift in the nature of compensation for past services. It vested a property right in the donee." It therefore would seem, in some instances at least, the government has made grants of its public resources which have been construed as being in the nature of a gift. Counsel for the government contend, however, that the theory of a gift cannot be sustained as to mineral claims, because of the fact that there are conditions subsequent in that (quoting from brief), "it is dependent upon a condition subsequent, namely, the discoverer of oil do certain assessment work annually. Unless this work is done, the grant is invalid." The difficulty with this theory, as we have heretofore touched upon, is that the annual assessment work is not a condition as between the mineral claimant and his government, affecting his title, but only that to protect himself against other qualified locators he must do certain things. In addition, there are undoubtedly many forms of gifts to which conditions are attached but which nevertheless do not lose their nature as gifts. In the case of Neale v. Neales, 9 Wall. (76 U. S.) 1, 19 L. Ed. 590, the Supreme Court recognizes a condition as being attached to a gift, the expression of the court being fairly epitomized in the syllabus as follows: "3. Equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. And this is particularly true where the donor stipulates that the expenditure shall be made, and by doing this makes it the consideration or condition of the gift." So that, even though the condition applying to the grant between the United States and the mineral claimant directly affected the latter's title as against the government, it would not necessarily mean that the grant because of a condition imposed would thereby lose its nature as a gift. Reward in some form or other is frequently the basis of a gift, as in the case of Barnes v. Poirier, supra, the court recognized the grant to be in the nature of a gift to old soldiers as compensation for past services to their government. If there could be a reward offered to old soldiers for past services to the government, upon the same theory why cannot a reward be offered to a discoverer of mineral deposits? The result of the endeavor in each case is a benefit to the nation. third defense, this court is of the opinion that it must be sustained. Had there been an effected compromise between the department and the taxpayer, it must have been sustained as against an attack in the courts. United States v. Kaufman, 96 U. S. 567, 24 L. Ed. 792. Here the matter was at all times in the process of adjustment, and merely because the department made answer to a supposititious case, upon which the later return purports to have been filed, does not and should not estop the government from asserting its claim to the tax. Neither does the nature of the statute, so far as the pleadings reveal the situation in the case, relieve a person charged with the payment of federal taxes on the estate of a deceased person from liability, simply on account of some delay in the department. The relationship between the government and the taxpayer in this case is not that of a proprietor and one with whom it is doing business in a contractual sense, but is that between sovereign and subject, in which the taxpayer is charged with the highest degree of responsibility. The taxpayer was not free to rest upon the seeming inactivity or delay of the department but should have reasonably pursued his activities to securing an adjustment of the matter before making distribution of the estate. For the reasons stated, the demurrer to the third defense will be sustained, reserving to the parties in all of the premises herein considered their proper exceptions. UNITED STATES v. SEIBERT. (District Court, N. D. West Virginia. October 21, 1924.) This court is not concerned in what may be saved or lost to the government by virtue of a construction of the law, but has arrived at the conclusion that a transaction in which the possessory title of a mineral claimant based upon discovery, without patent and without any direct consideration passing to the government, entitling the claimant to a removal of the mineral even to exhaustion, partakes more of the nature of a gift than that of any other method of St. Ann. Supp. 1923, § 10138%), making travacquiring title to property known to the law. Had Congress desired to exclude from its exemption of gifts any particular kind, it would have so declared. [3] Furthermore revenue statutes must be more strongly construed against the government and in favor of the citizen in case of doubt. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211. For the reasons stated, the demurrer to the second defense will be overruled. 1. Intoxicating liquors 146(2)-Under National Prohibition Act, injunctive remedy against person traveling to solicit orders held exclusive. National Prohibition Act, tit. 2, § 23 (Comp. eling to solicit orders for liquor a nuisance, without making act misdemeanor or fixing penalty, was not intended to make act crime, but remedy by injunction provided therein is exclusive, in view of different language of section 21 (Comp. St. Ann. Supp. 1923, $$ 10138/2jj), and penalty provided by section 29 (Comp. St. Ann. Supp. 1923, § 101382p), cannot be applied. 2. Criminal law 13-Act not criminal unless statute so denominates it or unless punishment is prescribed. No legislative enactment makes act an offense, crime, or misdemeanor, unless statute so denominates it, or unless punishment there[4] In regard to the demurrer to the for is expressly prescribed. 2 F.(2d) 80 3. Criminal law 13, 1208(2)-Courts may fix punishment for act designated misdemeanor by statute. If Legislature denounces act as misdemeanor, but fixes no punishment, court may fix punishment within limit of punishment for misdemeanor, and act forbidden by Legislature under pain of penalty is criminal. 4. Injunction 102-Equity does not inherently enjoin misdemeanors, presumption being citizen is not criminal. Equity does not inherently enjoin commission of misdemeanors; presumption that citizen is not criminal being preserved by chancellor. BAKER, District Judge. An information is filed charging the defendant in two counts as follows: "That during a certain period of time, to wit, from the 17th day of September, 1921, to the 16th day of September, 1924, in the city of Martinsburg, one Garnet Seibert, with intent to effect a sale, by and for himself, to divers persons to the United States attorney unknown, of moonshine liquor and other intoxicating liquor containing more than one-half of one per centum of alcohol by volume and fit for beverage purposes, did keep and carry around on his person certain moonshine liquor and other intoxicating liquor aforesaid, with the intent to effect a sale thereof as aforesaid. "And that the said Garnet Seibert at the times and places aforesaid, in the manner and form aforesaid, did unlawfully, knowingly, and willfully commit a nuisance in violation of section 23 of title II of the National Prohibition Act, and against the peace and dignity of the United States of America." The second count charges that the defendant, with intent to effect sales of liquor, "did travel to solicit, and did solicit, take, and accept, orders for the sale, shipment, and delivery of moonshine liquor and other intoxicating liquor containing more than 1 per centum of alcohol by volume and fit for use for beverage purposes, in violation of," etc. "And that the said Garnet Seibert at the times and places aforesaid, in the manner and form aforesaid, did unlaw2 F. (2d.)-6 fully commit a common nuisance in violation of section 23 of title II of the National Prohibition Act, and against the peace and dignity of the United States of America." The defendant files a demurrer and motion to quash, and relies upon four main grounds as follows: "(1) The contrast between the language of section 21 and section 23 indicates that Congress did not intend to punish a socalled 'walking nuisance' by a fine or imprisonment, but provided only that he might be enjoined from his unlawful acts. "(2) No specific act is enumerated in section 23 that is not made a crime by some other section of the act; therefore, if the construction contended for by the government be placed on section 23, the same acts are made criminal by two or more portions of the act, and possibly different punishments are prescribed, depending upon whether the punishment sought to be attached to these acts is contained in section 21 or section 29. "(3) The remedy by injunction is exclusive and not cumulative. "(4) The language of section 23 does not make the acts therein specified criminal, and no act can be a crime unless (a) so denominated, or unless (b) punishment is prescribed therefor. [1] Section 23, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138121) is as follows: "Any person who shall, with intent to effect a sale of liquor, by himself, his employee, servant, or agent, for himself or any person, company or corporation, keep or carry around on his person, or in a vehicle, or other conveyance whatever, or leave in a place for another to secure, any liquor, or who shall travel to solicit, or solicit, or take, or accept orders for the sale, shipment, or delivery of liquor in violation of this title is guilty of a nuisance and may be restrained by injunction, temporary and permanent, from doing or continuing to do any of said acts or things." The language of section 23, however, is that "any person is guilty of a nuisance and may be restrained by injunction. Had Congress intended a violation of section 23 to be punished as a crime, would it not have used the same or similar language used in section 21, or at least appropriate language for the purpose? May it not be inferred that when it used the words "common nuisance" in connection with the term "misdemeanor" in section 21, and the word "nuisance" in section 23, a distinction was intended? All the particular acts specified in section 23 are expressly forbidden elsewhere in the act and specific penalties prescribed, except possibly to "travel to solicit." To keep liquor is possession, forbidden by section 3 (Comp. St. Ann. Supp. 1923, § 10138/2aa); to carry on the person is transportation, forbidden by section 3; to leave in a place for another to secure is both possession and sale, forbidden by section 3; to solicit orders is forbidden by section 19 (Comp. St. Ann. Supp. 1923, § 10138/2ii). Congress hardly intended to denounce as a crime the act of traveling to solicit orders for liquor. Unless actual solicitation is made, no offense is committed; and, if such solicitation is made, it is punishable under section 19. If the term "nuisance," as used in section 23, is synonymous with "common nuisance" in connection with the term "misdemeanor," as used in section 21, as the learned district attorney contends, then Congress provided the punishment prescribed in section 21 for the acts specified in section 23. Therefore we have it that one who solicits may be punished under sections 19 and 29 by a fine of not more than $500, or, as prescribed by sections 23 and 21, by a fine of not more than $1,000, or imprisonment for not more than one year, or both. The learned attorney for the United States then contends that the punishment prescribed by section 29 (Comp. St. Ann. Supp. 1923, 101382p) would apply. That section provides: If the section provides a penalty for a violation of every provision of the title not otherwise specially provided for, a commissioner under section 26 (Comp. St. Ann. Supp. 1923, § 101382mm), discovering a person in the act of transporting liquor, and failing to seize the liquor, would be guilty of a violation of a provision of the title and subject to a fine. Section 29 provides the penalties for certain offenses denounced by the title. [2, 3] No legislative enactment makes an act an offense, a crime, a misdemeanor, unless the statute so denominates it, or unless punishment for the act is expressly prescribed. If the Legislature denounces a certain act as a misdemeanor, but fixes no punishment, the court may fix the punishment within the limit of punishment for a misdemeanor; or, if the Legislature forbids an act under pain of a certain penalty, then such an act is criminal. Section 23 neither calls the specific acts therein set out a crime, nor fixes any punishment for their commission. The court has reached the conclusion that section 21 defines a common nuisance (in prohibition parlance), denominates its maintenance a misdemeanor, and fixes the penalty for the misdemeanor. It goes further, and expressly confers jurisdiction in equity for injunctive proceedings. Section 23 specifies certain acts which, done with the intent to effect a sale of liquor, are defined as constituting a nuisance. It does not denominate it a misdemeanor, nor does it fix a penalty. It does, however, confer jurisdiction in equity for injunctive proceedings against the commission of the acts specified with the intent to effect a sale. [4] Equity does not inherently enjoin the commission of misdemeanors; the wholesome presumption that the citizen is not a criminal is preserved by the chancellor. Hence the intention of Congress in enacting section 23 of title 2, it may be inferred, was to confer equity jurisdiction by way of injunction rather than to denounce as a misdemeanor the acts that are elsewhere so denounced in the Prohibition Act. The demurrer and motion to quash may be sustained. aft BITUMINOUS PRODUCTS CO. v. HEADLEY GOOD ROADS CO. BITUMINOUS PRODUCTS CO. et al. v. HEADLEY GOOD ROADS CO. (District Court, D. Delaware. October 16, 1924.) No. 526. 1. Patents 328-Reissue 15,401, for Improv. ed method of making roads, held invalid for want of patentable novelty. The Van Westrum reissue, No. 15,401 (original No. 956,009), for improved method of making roads by means of asphaltic cement laid cold, claims 1, 2, and 3, held invalid for want of patentable novelty, in view of the prior art. 2. Patents 19-Mere variation in proportions of elements of a composition is not invention. A variation in the proportions of the elements of a composition does not constitute patentable novelty or invention, unless from the new proportions a new material or substance, or an old material or substance with new characteristics, or at least substantially enhanced qualities of utility, has been created. 3. Patents 19-New product must differ from old, otherwise than in degree. To be patentable, a new product, resulting from changing the proportions in an old composition, must differ from the old, otherwise than in degree. 4. Patents 36-Acquiescence as evidence of validity. While long, general, and unexplained acquiescence in a patent may be persuasive evidence of its validity, such acquiescence is of little or no weight, if there are other patents within whose scope an infringement of the one in question would come. In Equity. Suit by the Bituminous Products Company and the Barber Asphalt Company against the Headley Good Roads Company. Decree for defendant. Henry N. Paul (of Fraley & Paul), of Philadelphia, Pa., and William G. Mahaffy, of Wilmington, Del., for plaintiffs. Augustus B. Stoughton, of Philadelphia, Pa., and Charles F. Curley, of Wilmington, Del., for defendant." MORRIS, District Judge. The bill of complaint of Bituminous Products Company, owner, and the Barber Asphalt Company, exclusive licensee, of reissued letters patent No. 15,401, granted July 4, 1922, to L. S. Van Westrum, for improvements in methods of making roads, charges the defendant, Headley Good Roads Company, with infringing the first three claims of that patent. [1] The defenses are invalidity and noninfringement. The specification states: 83 etc., like sheet asphalt, tar macadam, bitulithic asphalt macadam, have hitherto usually been built in the following manner: The sand, stone, etc., have to be heated, and also the bitumen, like asphalt, tar, etc., and these materials have to be mixed hot and spread hot over a given foundation. "My invention does away with heating in any form when the pavement is to be laid. The broken stone, sand, gravel, or earth is used in its natural condition. For this purpose I liquefy hard bitumen, like natural asphalt, artificial asphalt, or the like, by heating the same and mixing it with any suitable flux, like residuum of mineral oils, or residuum of cotton seed or similar oils. In case I use a softer bitumen, like Texas, California, or Kansas asphalt, which contains enough natural flux, I use these asphaltums pure, or with a smaller percentage of flux. I make these mixtures emulsifiable in water, and the products thus obtained are mixed with cold stone, sand, or earth, by hand or machinery, and spread upon the roadway on a given foundation and then compacted. • After a few hours the action of the air oxidizes the emulsified asphaltic cement, and the whole mixture of stone, etc., and emulsified asphaltic cement makes a compact mass, withstand any kind of traffic, and yet elaswhich is waterproof and hard enough to tic. "By hard bitumen' I mean asphaltums, tar, etc., which are not fluid when cold. I do not limit my invention to any special process of emulsifying the bitumen, but I claim that it is novel to use as the base of my asphaltic cement hard bitumen, which is not fluid when cold, in excess over fluxes and chemicals." Claims 1 and 2 are substantially alike. Claims 1 and 3 read thus: "1. The method of building roads which consists in mixing with the materials constituting the mineral aggregate in their natural condition an asphaltic cement whose base is hard bitumen in excess over fluxes and chemicals, and emulsified with an agent whose basis is water, and in spreading and compacting the mixture on a suitable foundation." "3. The method of building roads, which "My invention relates to improvements consists in employing an oxidizable bituin methods of making roads, streets, public minous emulsion, comprising a bituminous squares, roadbeds of railways, and other cement emulsified with an agent whose basis like surfaces by means of an asphaltic ce- is water, mixing this emulsion with a cold ment laid cold. Bituminous roads, streets, mineral aggregate, and spreading and com |