Its States for the Eastern district of Louisiana upon transferable certificates of 1882, issued under the ordinance aforesaid. In one suit, No. 1,900 on the docket, judgment was rendered in his favor on May 21, 1890, for $4,960.40 and costs, but without interest. language is: "It is therefore ordered, adjudged, and decreed that the plaintiff, Henry Siegel, do have and recover of and from the defendant, the city of New Orleans, the sum of $4,960.40 and costs, but without interest. The said judgment to be paid exclusively out of such revenues of the city of New Orleans for the year 1882 as may be collected by said city from revenues set apart by the amended budget of the said city for the year 1882, legally and properly payable, and for which appropriation was made by said amended budget: provided that the surplus of revenue of any subsequent year may be applied to the payment of the debts of the year 1882, according to section 3 of Act No. 30, 1877." A like judgment was rendered in the two other cases, the only difference between them being in the amounts which they covered; both amounts, separately, however, being below $5,000. At about that time, or subsequently thereto, the defendant also filed against the city of New Orleans 14 suits, numbered on the docket, respectively, from 11,914 to 11,928, omitting 11,922. These suits covered certificates of the city of New Orleans, like those already referred to, for various amcunts, and against the appropriations of the years 1879, 1880, 1881, and 1882. These 17 cases were heard together before the district and circuit judge, resulting in separate judgments, entered on June 19, 1890, in each case, as follows: "It is therefore ordered, adjudged, and decreed that the plaintiff do have and recover of and from the defendant, the city of New Orleans, the sum of —, payable out of the revenues of the year with full benefit of the provisions of section 3 of Act No. 30, 1877." The proper blanks left above contained, in the entry of each judgment, a statement of the amount and the year against which the claim had been created. The sum of these 17 judgments payable out of the revenues of the respective years was as follows: 1879, $21,008.36; 1880, $3,391.87; 1881, $12,311.78; 1882, $35,366.17. Shortly after the entering of the judgments, proceedings by mandamus were commenced in all of the suits to compel the comptroller of the city of New Orleans to pay the amounts, upon the ground that there was a surplus of revenue for the years 1888 and 1889 in the city treasury largely in excess of the judgments, and that the relator was entitled by contract to have them paid out of the surplus revenues of any year subsequent to that in which the indebtedness which he held was created. The 17 mandamus proceedings were ordered consolidated into one cause, to be entitled "Henry Siegel v. The City of New Orleans," under the number "11,500, consolidated." The comptroller, in this consolidated suit, made return denying that there was any surplus of revenues for the year 1888, and averring, on the contrary, "that the budget for the city of New Orleans for the year 1888 was $1,474,093.10 for the alimony of the city and the sum of $88,752.04 for the reserve fund, making the total budget for all purposes against the revenues for that year the sum of $1,562,855.14; that the total collection out of the revenues for that year, to date of return, was the sum of $1,550,502.32; that out of said amount the sum of $1,474,093.10 has been paid on account of the alimony of the city, and $47,343.05 has gone to pay claims out of the reserve fund; that $29,066.17 was in cash to the credit of the reserve fund for that year, and is retained to pay claims payable out of the same; that if the said $29,066.17 were paid to the creditors holding claims against the reserve fund there would still remain unpaid claims against the said reserve fund to the extent of $12,342.82; that until said amount was collected there could not be a payment of all the claims charged against the reserve fund," and hence no surplus existed. Facts substantially, similar, the figures varying in amount, were stated in regard to the funds of 1889. The return denied the existence of any special contract right in favor of the judgment creditor as against the reserve fund of the respective years. A jury hav ing been waived, the case was submitted to the court, and resulted in a decree refusing the mandamus (44 Fed. 590), and the case was brought by error here. Henry L. Lazarus and J. R. Beckwith, for plaintiff in error. E. A. O'Sullivan, for defendant in error. *Mr. Justice WHITE, after stating the case,' delivered the opinion of the court. The right which the relator asserts rests upon the premise that the third section of the act of 1877 contractually dedicated the surplus fund of any year to the payment of creditors holding claims for years subsequent to 1877, which claims were made by law payable out of the revenues for such subsequent years. From this is deduced the conclusion that the city charter (sections 65 and 66 of the act of 1882), and the amendment thereof in 1886 (Act 109 of 1886), which authorize the surplus in any year to be applied to works of public improvement, are void, so far as creditors subsequent to 1877 are concerned, because they impair the obligations of the contract made in favor of such creditors by the act of 1877. The premise is fallacious, and the conclusion drawn from it unsound. The act of 1877, after dedicating the revenues of each year to the expenses of that year, took any surplus out of the imperative rule thus established, by the proviso that "any surplus of said reve nues may be applied to the indebtedness of *358 *357 former years." In other words, having fix. ed inflexibly the rule by which the revenues of the year were to be first used to pay the debts of the year, it made an exception by allowing the surplus of any year to be applied to the debts "of former years." The rule was imperative; the exception permissive or facultative. Both provisions, taken together, operated to deprive the city government of power to use the revenues of one year to pay the debts of another, and to confer on the city authority to employ, if it so chose, the surplus of one year to pay debts of previous years. Indeed, the law made no attempt to dedicate the surplus to any particular object, or to control the legislative discretion of the municipal council in its regard. Having affirmatively directed that the revenues of each year should be applied to the year's expenses or debts, the surplus necessarily became subject to the appropriating power of the city. To prevent the general limitation dedicating each year's revenues to each year's debts from operating to prevent the surplus from being applied to debts of previous years, should the city so desire, the law said the city "may" so use it. It is familiar doctrine that, where a statute confers a power to be exercised for the benefit of the public or of a private person, the word "may" is often treated as imposing a duty, rather than conferring a discretion. Mason v. Fearson, 9 How. 248; City of Washington v. Pratt, 8 Wheat. 687; supervisors v. U. S., 4 Wall 435. This rule of construction is. however, by no means invariable. Its application depends on the context of the statute, and on whether it is fairly to be presumed that it was the intention of the legislature to confer a discretionary power or to impose an imperative duty. Minor v. Bank, 1 Pet. 46; Binney v. Canal Co., 8 Pet. 201; Thompson v. Lessee of Carroll, 22 How. 422. In Minor v. Bank, supra, Mr. Justice Story, delivering the opinion of the court, said: "The argument of the defendants is that 'may' in this section means 'must'; and reliance is placed upon a well-known rule, in the construction of public statutes, where the word 'may' is often construed as imperative. Without question, such a construction is proper in all cases where the legislature means to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, which carries into effect the true intent and object of the legislature in the enactment. The ordinary meaning of the language must be presumed to be intended unless it would manifestly defeat the object of the provisions." In Thompson v. Lessee of Carroll, supra, this court, speaking through Mr. Justice Grier, observed: "It is only where it is necessary to give effect to the clear policy and Intention of the legislature that such a lib erty can be taken with the plain words of the statute." In the law to be construed here it is evident that the word "may" is used in special contradistinction to the word "shall," and hence there can be no reason for "taking such a liberty." The legislature first imposes an imperative duty,-the application of the revenue of each year to the expenses, thereof, and then makes provision for the case of an excess of revenue over expenses.* In the first the word "shall," and in the latter provision the word "may," is used, indicating command in the one and permission in the other. Indeed, the discretionary nature of the power lodged in the city by the act of 1877, in regard to the surplus revenue of any year, results inevitably from the entire context of the statute and its obvious purpose. Under the general rule which the statute created, all the revenues of each year were to be applied exclusively to the expenditures of such year, hence they could not be used for any other purpose. If, after the expenses of any year had been paid out of its revenues, a balance remained on hand, the city would have been powerless to use it. She could not have applied it to the payment of a debt, because the statute said that it should be devoted to the expenditures of the year in which it was collected. She could not have applied it to the expenses of other years, for this, likewise, would have been a violation of the statute. She would simply have had in her possession a sum of money which she could not lawfully use for any purpose whatever. This condition of things rendered it necessary to give power to dispose of the surplus; hence the use of the word "may," which clearly expresses this legislative intent. The surplus having been left by the act of 1877 under the control of the city council, it follows that that act gave to the relator no contract right to such surplus. The city having power to dispose of it, the acts of 1882 and 1886, directing the municipality to appropriate the surplus to works of public improvement, impaired the obligation of no contract right in favor of relator, since no right existed, and was therefore, quoad the questions presented by this record, a valid exercise of legislative authority. Indeed, the necessary effect of granting the relief here sought would be to impair the contract rights of creditors who are not before us. The record shows that under the mandatory terms of the statutes of 1882 and 1886 the surplus for the years covered by relator's claim has been set apart to works of public improvement, and appropriations to that end have been made against the same. To make the mandamus peremptory would,' therefore, take the fund from the creditors to the payment of whose claims it has been lawfully consecrated, and give it to the re lator. *343 The judgments in favor of the relator in no way change the situation. The first three direct "said judgment to be paid exclusively out of such revenues of the year 1882, * and for which appropriations are made in said amended budget, provided that any surplus of the revenues of any subsequent year may be applied to the payment of the debts of the year 1882, according to section 3 of Act No. 30 of 1877." The last 14, after providing that they should be paid out of the funds of the respective years, add, "with the full benefit of the provisions of section 3 of Act No. 30 of 1877." The proviso in all these judgments adds nothing to the rights conferred by the act of 1877, but in terms simply preserves them. What the position of the relator under that act is we have just stated. The manifest purpose of the saving clause in the judgments was to prevent the language which directed that they should be paid out of the funds of the year from being construed as preventing the city government from paying out of the surplus, if so determined by the municipal authorities. Judgment affirmed. (156 U. S. 342) PALMER v. VILLAGE OF CORNING. PATENTS-SEWER GRATINGS-INVENTION. Patent No. 134,978, for an "improvement in gratings for sewer inlets" consisting of a grate elevated above the catch basin of a sewer, and resting on a ring or support placed below the top of the basin by means of pins which thus lift up the grating, between which pins are left spaces allowing the water to pass through, under the grating, the result of so elevating the grate being, it is claimed, to keep the openings on the grating proper, and the openings below free from debris which would otherwise cumulate on or against it, does not, even if considered a patent for a "combination," involve invention. ac Appeal from the Circuit Court of the United States for the Northern District of New York. E. H. Risley, for appellant. Geo. T. Spencer, for appellee. be an "Improvement in gratings for sewer inlets," and describe it as follows: "My improvement consists in the employment of a device to elevate the grating above the opening which it covers a short distance, so that it will not become obstructed by small sticks, straws, leaves, and other small rubbish not large enough to clog the sewer or drain with which it may be connected, and at the same time will stop all matter large enough to do injury in said drain. "My improvement may be attached to any form of grating, round, or square, and consists of a cast-iron ring made to fit the collar which surrounds the opening to hold the grate in place, marked 'a' in the drawing, in which I set the cast or wrought-iron pins, marked 'b' in the drawing, to which the grating is firmly attached, and by means of which the grating may be elevated one to two inches, more or less, as may be desirable. These pins may be of wrought iron fitted to holes drilled in the grate and ring; or the grate, ring, and pins for elevating the grate may be cast all in one piece; or wroughtiron pins may be cast into the ring and grate when they are cast. "The whole grating and ring may be taken out as desired, as easily as if they were not furnished with the supporting ring; and my improvement may be used with a wood or iron collar, as may be desired. "By thus elevating the grate a space is left, through which leaves, straws, small sticks will pass freely, and the grate will be kept clear for the passage of water. "I claim: "The grating for sewer openings herein described, consisting of the ring, a, supporting pins, b, and elevated grating, substantially as specified." It thus appears that the whole subject-matter which is covered consists of a grate ele vated above the top of the catch basin of a sewer, and resting on a ring or support placed below the top of the basin by means of pins which thus lift up the grating, between which pins are left spaces allowing the water to pass through, under the grating, the result of so elevating the grate being, it is claimed, to keep the openings on the grat Mr. Justice WHITE delivered the opinion | ing proper, and the openings below free from of the court. The sole question in this case is whether the appliance to which the plaintiff in error claims the rights of a patentee under the grant of letters patent No. 134,978, bearing date January 21, 1873, issued to his assignor, involves invention, or is simply a manifestation of mechanical skill. There is no doubt that in this, as in all similar cases, the letters patent are prima facie evidence that the device was patentable. Still, we are always required, with this presumption in mind, to examine the question of invention vel non upon its merits in each particular case. In the present instance the letters patent state the device to the debris which would otherwise accumulate thereon or against the same. There is no pretense that the claim covers a grate of any particular style of manufacture or any particular shape. In fact, it is expressly stated that the grate may be made either round or square, and that the pins may be of wrought iron, fitted to holes drilled in the grate or ring, or the grate, rings, and pins for elevating the grate may be cast all in one piece, or wrought-iron pins may be cast into the ring and grate when they are cast. Viewed separately, the elements of this device certainly involve no invention. A grate over a sewer is one of the simplest of mechanical devices. The mere use of a ring of iron on which to rest such a grating is obviously nothing more than a mechanical arrangement, which involves no element of invention; and the same is the case with the use of pins or legs for the purpose of holding up a sewer grate. And it is equally clear that the leaving of open spaces between the pins and the elevating of the grate above the ring, thereby giving greater facility for the flow of water, is invention in no sense of the word. But, although no one of these elements of the contrivance involves invention, it is insisted that, taken all together, they constitute a "combination," and that it is this combination which is covered by the letters patent. If a combination of unpatentable elements, as such, produces new and useful results, there can be no doubt that the combination is patentable. But there are certain conditions constituting the essential nature of a combination under the patent law, which we think are not met in this case. The law upon this subject this court has often stated: "It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one by bringing together several old devices without producing a new and useful result, the joint product of the elements of the combination and something more than an aggregate of old results, can acquire a right to prevent others from using the same devices, either singly or in other combinations, or, even if a new and useful result is obtained, can prevent others from using some of the devices, omitting others, in combination." Hailes v. Van Wormer, 20 Wall. 353. "The combination to be patentable must produce a different force or effect or result, in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union; if not so, it is only an aggregation of separate elements." Reckendorfer v. Faber, 92 U. S. 347. "In a patentable combination of old elements all the constituents must so enter into it as that each qualifies every other. To draw an illustration from another branch of the law, they must be joint tenants of the domain of the invention, seized each of every part, per my et pour tout, and not mere tenants in common, with separate interests and estates. It must form either a new machine of a distinct character and function, or pro duce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise it is only a mechanical juxtaposition, and not a vital union." Pickering v. McCullough, 104 U. S. 310. "It is true that such a fireplace heater, by reason of the fuel magazine, was a better heater than before, just as the outstanding stove with its similar fuel magazine was a better heater than a similar stove without such a fuel magazine. But the improvement in the fireplace heater was the result merely of the single change produced by the introduction of the fuel magazine, but one element in the combination. The new and improved result in the utility of a fireplace, heater cannot be said to be due to anything in the combination of the elements which compose it, in any other sense than that it arises from bringing together old and wellknown separate elements, which, when thus brought together, operate separately, each in its own old way. There is no specific quality of the result which cannot be definitely assigned to the independent action of a single element. There is, therefore, no patentable novelty in the aggregation of the several elements, considered in itself." Heating Co. v. Burtis, 121 U. S. 286, 7 Sup. Ct. 1034. Tested by these principles, we think it evident that there is no invention in the device now before us. It is claimed that its effect is to prevent the grate from being clogged. But this effect only comes from raising the grate and leaving openings beneath it. It is an effect produced solely by the openings beneath, and is not in any way due to the presence of the grate above. Thus, even if the appliance operates as claimed, its operation is the result of no combined action, but is due entirely to the openings below. If there were no grate above the pins, but a solid piece of metal or other substance, so that no water could enter the sewer except through the openings left between the pins, the tendency of the flow of the water through those openings would not be affected, and the only result would be to diminish the flow of water into the sewer in a given time by the quantity which would enter above if the place were grated. It seems manifest, indeed, that the only practical operation of this device is to increase the utility of the sewer by elevating the grate, and so rendering it easier for the water to enter. An attempt was made to show by the testimony of a person who had observed the operation of one of these grates made in a circular form that its use resulted in giving a circular motion to the water, and that the debris was carried to the periphery of the circulating fluid, and thereby prevented from accumulating on the top of the grate. But, if this be true, it is manifestly a result of leaving the open spaces between the pins, and having the grate circular in form. Conceding that the water, just before passing through openings thus arranged, would ac 347 quire something of a circular motion, this would not be by any means the result of any combination between the opening below and the grate above. And, moreover, it cannot be contended that the arrangement of a circular grate supported on pins with the open spaces between them constitutes the invention, for it is expressly stated that the grates may be of any form, round or square. The judgment below, holding that no invention is involved in this arrangement, is, we think, obviously correct, and it is therefore affirmed. (156 U. S. 361) WALDRON v. WALDRON. (March 4, 1895.) No. 97. OBJEC BILL OF EXCEPTIONS-TIME OF FILING-CERTIFI- 1. A bill of exceptions may be filed after the term at which judgment was rendered, by agreement of parties given during such term. 2. Objection to the failure of appellant's counsel to deliver a bill of exceptions to appellee's counsel, for inspection and correction, within the time fixed by a stipulation for extension of time for settling such bill, must be made when the bill is settled, to be available. error 3. Where appellee or defendant in moves for a new bond after entry of the case on the docket in the supreme court at the return term, he waives an objection that the case was not docketed in time. 4. The words, "which was all the testimony offered on the trial of the cause," immediately following the evidence in a bill of exceptions, will be treated as meaning all the evidence, where all the recitals in the bill show that the word "testimony" was used as synonymous with "evidence." 5. In an action against a woman for alienating the affections of plaintiff's husband, the court admitted the record of proceedings for a divorce previously obtained by plaintiff, for the sole purpose of proving the fact of divorce, and forbade the reading or stating to the jury any averments of the petition reflecting on defendant. It also admitted in evidence the statute of the state in which such proceedings were had, for the sole purpose of showing the law under which the divorce was granted. Plaintiff's counsel, in their argument to the jury, used such record and statute for the general purposes of their case, stated the averments of the petition which assailed defendant's character, and put them in juxtaposition with such statute and the testimony of certain witnesses, to produce the impression that the divorce was granted on the ground of adultery between defendant and plaintiff's husband. Held such misconduct of counsel as to require reversal. 6. The fact that defendant objected to the admissibility of such record and statute for any purpose, and that they were admitted for a special purpose, did not constitute a failure to except to the misuse of such testimony, or authorize its use for other purposes, for which it was not, and could not be legally admitted. 7. Where defendant excepted to a misuse of the evidence by counsel in argument, when first made, the fact that the same misuse was afterwards made, without exception, does not disentitle defendant to reversal. 8. Where the bill of exceptions shows that the objectionable averments of such petition were conveyed to the jury, the fact that such statement in the bill is in direct conflict with the rulings of the court is not sufficient to show that the statement was an inadvertence. 9. The fact, if true, that such evidence was admissible for all purposes, does not disentitle defendant to a reversal because of a use of it for purposes for which the court rejected it, and in direct violation of the restriction placed upon it. 10. The error in the misuse of the testimony was not cured by a direction to the jury that they should not consider any fact shown by such record, except the fact of divorce, and that they should not assume from anything in evidence that such divorce was granted on the ground of adultery. In Error to the Circuit Court of the United States for the Northern District of Illinois. Mary Russell Beauchamp was married in September, 1865, to E. H. Waldron. They lived in Lafayette, Ind., from the date of their marriage until 1875, when they removed to St. Louis, the employment of the husband calling him there. In 1877 they left St. Louis, and returned to Indiana, where they continued to live as husband and wife until June, 1886. At that date the husband abandoned his marital relations, and fixed his permanent residence in Chicago. For 12 or 15 years, prior to June, 1886, the husband, Waldron, had friendly relations with E. S. Alexander and wife, who lived in Chicago; Waldron dealing with Alexander in a business way, and also calling socially at his residence, and Alexander visiting Waldron when he came to Lafay ette. In February, 1886, E. S. Alexander died, leaving a widow. Subsequently, Mrs. Waldron filed in the superior court of Tippecanoe county, Ind., a suit for divorce against her husband, which ripened, in June, 1887, into a decree granting the divorce, and giving her $10,000 alimony. In October, 1887, E. H. Waldron married Mrs. Josephine P. Alexander, the widow of E. S. Alexander. In June, 1888, Mary Russell, the divorced wife of E. H. Waldron, sued Mrs. Josephine P. Waldron, the former Mrs. Alexander, in the circuit court of the United States for the Northern district of Illinois. The grounds of this action are stated in her complaint as follows: 362 (1) "Whereas, the said defendant, contriving, and wrongfully, wickedly, and unjustly” intending, to injure the said plaintiff, and to deprive her of the comfort, fellowship, society, aid, and assistance of Edwin H. Waldron, the then husband of the said plaintiff, and to alienate and destroy his affection for said plaintiff, on, to wit, the 6th day of June, A. D. 1886, and on divers other days and times between said 6th day of June, A. D. 1886, to the 21st day of June, A. D. 1887, at," etc., "wrongfully, wickedly, and unjustly debauched and carnally knew the said Edwin H. Waldron, then and there still being the husband of the said plaintiff; and thereby the affection of the said Edwin H. Waldron for the said plaintiff was then and there alienated and destroyed, and also, by reason of the premises, the said plaintiff |