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States for the Eastern district of Louisiana number “11,500, consolidated." The compupon transferable certificates of 1882, issued troller, in this consolidated suit, made return under the ordinance aforesaid. In one suit, denying that there was any surplus of reve. No. 1,900 on the docket, judgment was ren nues for the year 1888, and averring, on the

dered in his favor on May 21, 1890, for $4,- | contrary, "that the budget for the city of 960.40 and costs, but without interest. Its New Orleans for the year 1888 was $1,474,

language is: "It is therefore* ordered, ad. 093.10 for the alimony of the city and the judged, and decreed that the plaintiff, Henry sum of $88,752.04 for the reserve fund, makSiegel, do have and recover of and from the ing the total budget for all purposes against defendant, the city of New Orleans, the sum the revenues for that year the sum of $1,562,of $4,960.40 and costs, but without interest. 855.14; that the total collection out of the The said judgment to be paid exclusively out revenues for that year, to date of return, of such revenues of the city of New Orleans was the sum of $1,550,502.32; that out of for the year 1882 as may be collected by said said amount the sum of $1,474,093.10 has city from revenues set apart by the amend. been paid on account of the alimony of the ed budget of the said city for the year 1882, city, and $47,343.05 has gone to pay claims

legally and properly payable, and out of the reserve fund; that $29,066.17 was for which appropriation was made by said in cash to the credit of the reserve fund for amended budget: provided that the surplus that year, and is retained to pay claims pay. of revenue of any subsequent year may be able out of the same; that if the said $29,applied to the payment of the debts of the 066.17 were paid to the creditors holding year 1882, according to section 3 of Act No. claims against the reserve fund 30, 1877." A like judgment was rendered in there would still remain unpaid claims the two other cases, the only difference be against the said reserve fund to the extent tween them being in the amounts which of $12,342.82; that until said amount was they covered; both amounts, separately, how. collected there could not be a payment of ever, being below $5,000. At about that all the claims charged against the reserve time, or subsequently thereto, the defendant fund," and hence no surplus existed. Facts also filed against the city of New Orleans 14 substantially, similar, the figures varying in suits, numbered on the docket, respectively, amount, were stated in regard to the funds from 11,914 to 11,928, omitting 11,922. These of 1889. The return denied the existence suits covered certificates of the city of New of any special contract right in favor of the Orleans, like those already referred to, for judgment creditor as against the reserve various amounts, and against the appropri- fund of the respective years. A jury hav. ations of the years 1879, 1880, 1881, and ing been waived, the case was submitted to 18S2. These 17 cases were heard together the court, and resulted in a decree refusing before the district and circuit judge, result the mandamus (44 Fed. 590), and the case ing in separate judgments, entered on June was brought by error here. 19, 1890, in each case, as follows: “It is

Henry L. Lazarus and J. R. Beckwith, for therefore ordered, adjudged, and decreed

plaintiff in error. E. A. O'Sullivan, for de that the plaintiff * do have and re

fendant in error. cover of and from the defendant, the city of New Orleans, the sum of payable out * Mr. Justice WHITE, after stating the case, of the revenues of the year

with full delivered the opinion of the court. benefit of the provisions of section 3 of Act The right which the relator asserts rests No. 30, 1877." The proper blanks left above upon the premise that the third section of contained, in the entry of each judgment, a the act of 1877 contractually dedicated the statement of the amount and the year against surplus fund of any year to the payment of which the claim had been created. The sum creditors holding claims for years subseof these 17 judgments payable out of the rev quent to 1877, which claims were made by enues of the respective years was as follows: law payable out of the revenues for such 1879, $21,008.36; 1880, $3,391.87; 1881, $12, subsequent years.

From this is deduced the 311.78; 1882, $35,366.17.

conclusion that the city charter (sections 65 Shortly after the entering of the judg and 66 of the act of 1882), and the amendments, proceedings by mandamus were com ment thereof in 1886 (Act 109 of 1896), which menced in all of the suits to compel the authorize the surplus in any year to be apcomptroller of the city of New Orleans to plied to works of public improvement, are pay the amounts, upon the ground that there void, so far as creditors subsequent to 1877 was a surplus of revenue for the years 1888 are concerned, because they impair the obliand 1889 in the city treasury largely in ex gations of the contract made in favor of cess of the judgments, and that the relator such creditors by the act of 1877. The prewas entitled by contract to have them paid mise is fallacious, and the conclusion drawn out of the surplus revenues of any year sub from it unsound. The act of 1877, after sequent to that in which the indebtedness dedicating the revenues of each year to the which he held was created. The 17 man expenses of that year, took any surplus out damus proceedings were ordered consolidat of the imperative rule tbus established, by ed into one cause, to be entitled “Henry Sie the proviso that “any surplus of said reve gel v. The City of New Orleans," under the nues may be applied to the indebtedness of

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former years." In other words, having fix. intention of the legislature that such a lib
ed inflexibly the rule by which the revenues erty can be taken with the plain words of
of the year were to be first used to pay the the statute."
debts of the year, it made an exception by In the law to be construed here it is evi.
allowing the surplus of any year to be ap dent that the word “may" is used in special
plied to the debts "of former years." The contra distinction to the word "shall," and
rule was imperative; the exception permis hence there can be no reason for “taking
sive or facultative. Both provisions, taken such a liberty.” The legislature first impos-
together, operated to deprive the city gov es an imperative duty,-the application of
ernment of power to use the revenues of one the revenue of each year to the expenses
year to pay the debts of another, and to con thereof,-and then makes provision for the
fer on the city authority to employ, if it so case of an excess of revenue*over expenses.
chose, the surplus of one year to pay debts In the first the word "shall," and in the latter
of previous years. Indeed, the law made no provision the word "may," is used, indicat-
attempt to dedicate the surplus to any par ing command in the one and permission in
ticular object, or to control the legislative the other. Indeed, the discretionary nature
discretion of the municipal council in its re of the power lodged in the city by the act of
gard. Having attirmatively directed that the 1877, in regard to the surplus revenue of any
revenues of each year should be applied to year, results inevitably from the entire con-
the year's expenses or debts, the surplus text of the statute and its obvious purpose.
necessarily became subject to the appropri Under the general rule which the statute cre
ating power of the city. To prevent the ated, all the revenues of each year were to
general limitation dedicating each year's rev. be applied exclusively to the expenditures of
enues to each year's debts from operating such year, hence they could not be used for
to prevent the surplus from being applied any other purpose. If, after the expenses of
to debts of previous years, should the city any year had been paid out of its revenues,
so desire, the law said the city “may” so use a balance remained on hand, the city would
it.

have been powerless to use it. She could
*It is familiar doctrine that, where a stat. not have applied it to the payment of a
ute confers a power to be exercised for the debt, because the statute said that it should
benefit of the public or of a private person, be devoted to the expenditures of the year
the word “may” is often treated as imposing in which it was collected. She could not
a duty, rather than conferring a discretion. have applied it to the expenses of other
Mason v. Fearson, 9 How. 218; City of Wash years, for this, likewise, would have been a
ington v. Pratt, 8 Wheat. 697; supervisors v. violation of the statute. She would simply
U. S., 4 Wall 435. This rule of construction have had in her possession a sum of money
is, however, by no means invariable. Its which she could not lawfully use for any
application depends on the context of the purpose whatever. This condition of things
statute, and on whether it is fairly to be pre rendered it necessary to give power to dis-
sumed that it was the intention of the legis. pose of the surplus; hence the use of the
lature to confer a discretionary power or to word "may," which clearly expresses this
impose an imperative duty. Minor v. Bank, legislative intent.
1 Pet. 46; Binney v. Canal Co., 8 Pet. 201; The surplus having been left by the act of
Thompson v. Lessee of Carroll, 22 How. 422. 1877 under the control of the city council, it
In Minor v. Bank, supra, Mr. Justice Story, follows that that act gave to the relator no
delivering the opinion of the court, said: contract right to such surplus. The city
“The argument of the defendants is that having power to dispose of it, the acts of
'may' in this section means 'must'; and reli 1882 and 1986, directing the municipality to
ance is placed upon a well-known rule, in appropriate the surplus to works of public
the construction of public statutes, where improvement, impaired the obligation of no
the word 'may' is often construed as impera contract right in favor of relator, since no
tive. Without question, such a construction right existed, and was therefore, quoad the
is proper in all cases where the legislature questions presented by this record, a valid
means to impose a positive and absolute exercise of legislative authority.
duty, and not merely to give a discretionary Indeed, the necessary effect of granting the
power. But no general rule can be laid down relief here sought would be to impair the
upon this subject, further than that that contract rights of creditors who are not be.
exposition ought to be adopted in this, as in fore us. The record shows that under the
other cases, which carries into effect the mandatory terms of the statutes of 1892 and
true intent and object of the legislature in 1886 the surplus for the years covered by re-
the enactment. The ordinary meaning of lator's claim has been set apart to works of
the language must be presumed to be in public improvement, and appropriations to
tended unless it would manifestly defeat the that end have been made against the same.
object of the provisions."

To make the mandamus. peremptory would, In Thompson v. Lessee of Carroll, supra, therefore, take the fund from the creditors this court, speaking through Mr. Justice to the payment of whose claims it has been Grier, observed: “It is only where it is nec lawfully consecrated, and give it to the re essary to give effect to the clear policy and la tor.

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The judgments in favor of the relator in be an “Improvement in gratings for sewer no way change the situation. The first three Inlets," and describe it as follows: direct "said judgment to be paid exclusively. “My improvement consists in the employ. out of such revenues

of the year ment of a device to elevate the grating above 1882, * and for which appropriations the opening which it covers a short distance, are made in said amended budget, provided so that it will not become obstructed by that any surplus of the revenues of any sub small sticks, straws, leaves, and other small sequent year may be applied to the payment rubbish not large enough to clog the sewer of the debts of the year 1832, according to or drain with which it may be connected, section 3 of Act No. 30 of 1877." The last and at the same time will stop all matter 14, after providing that they should be paid large enough to do injury in said drain. out of the funds of the respective years, add, “My improvement may be attached to any “with the full benefit of the provisions of form of grating, round, or square, and consection 3 of Act No. 30 of 1877." The pro sists of a cast-iron ring made to fit the colviso in all these judgments adds nothing to lar which surrounds the opening to hold the the rights conferred by the act of 1877, but grate in place, marked 'a' in the drawing, in in terms simply preserves them. What the which I set the cast or wrought-iron pins, position of the relator under that act is we marked 'b' in the drawing, to which the grathave just stated. The manifest purpose of ing is firmly attached, and by means of the saving clause in the judgments was to which the grating may be elevated one to prevent the language which directed that two inches, more or less, as may be desirable. they should be paid out of the funds of the These pins may be of wrought iron fitted to year from being construed as preventing the holes drilled in the grate and ring; or the city government from paying out of the sur grate, ring, and pins for elevating the grate plus, if so determined by the municipal au may be cast all in one piece; or wroughtthorities. Judgment affirmed.

iron pins may be cast into the ring and grate when they are cast.

"The whole grating and ring may be taken (156 U. S. 342)

out as desired, as easily as if they were not PALMER V. VILLAGE OF CORNING. furnished with the supporting ring; and my (March 4, 1895.)

improvement may be used with a wood or No. 137.

iron collar, as may be desired. Patexts-Sewer GRATINGS-INVENTION.

"By thus elevating the grate a space is left, Patent No. 134,978, for an "improvement through which leaves, straws, small sticks in gratings for sewer inlets" consisting of a will pass freely, and the grate will be kept grate elevated above the catch basin of a sewer, clear for the passage of water. and resting on a ring or support placed below

“I claim: the top of the basin by means of pins which thus lift up the grating, between which pins are “The grating for sewer openings herein de left spaces allowing the water to pass through, scribed, consisting of the ring, a, supporting under the grating, the result of so elevating the grate being, it is claimed, to keep the openings

pins, b, and elevated grating, substantially on the grating proper, and the openings below as specified." free from debris which would otherwise ac It thus appears that the whole subject-matcumulate on or against it, does not, even if con

ter which is covered consists of a grate ele sidered a patent for a "combination," involve invention.

vated above the top of the catch basin of a

sewer, and resting on a ring or support Appeal from the Circuit Court of the United States for the Northern District of New

placed below the top of the basin by means

of pins which thus lift up the grating, beYork.

tween which pins are left spaces allowing E. H. Risley, for appellant. Geo. T. Spen- | the water to pass through, under the grating, cer, for appellee.

the result of so elevating the grate being, it

is claimed, to keep the openings on the gratMr. Justice WHITE delivered the opinioning proper, and the openings below free from of the court.

the debris which would otherwise accumuThe sole question in this case is whether

late thereon or against the same. There is the appliance to which the plaintiff in er no pretense that the claim covers a grate of ror claims the rights of a patentee under the any particular style of manufacture or any grant of letters patent No. 134,978, bearing particular shape. In fact, it is expressly date January 21, 1873, issued to his assignor, stated that the grate may be made either involves invention, or is simply a manifesta- round or square, and that the pins may be of tion of mechanical skill.

wrought iron, fitted to holes drilled in the There is no doubt that in this, as in all grate or ring, or the grate, rings, and pins similar cases, the letters patent are prima for elevating the grate may be cast all in facie evidence that the device was patenta one piece, or wrought-iron pins may be cast ble. Still, we are always required, with this into the ring and grate when they are cast. presumption in mind, to examine the ques. | Viewed separately, the elements of this detion of invention vel non upon its merits in vice certainly involve no invention. A grate each particular case. In the present in over a sewer is one of the simplest of mestance the letters patent state the device to chanical devices. The mere use of a ring

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of Iron on which to rest such a grating is ob- , duce a result due to the joint and co-operating viously nothing more than a mechanical ar action of all the elements, and which is not rangement, which involves no element of in the mere adding together of separate convention; and the same is the case with the tributions. Otherwise it is only a mechan. use of pins or legs for the purpose of holding ical juxtaposition, and not a vital union." up a sewer grate. And it is equally clear Pickering v. McCullough, 104 U. S. 310. that the leaving of open spaces between "It is true that such a fireplace heater, by the pins and the elevating of the grate above reason of the fuel magazine, was a better the ring, thereby giving greater facility for heater than before, just as the outstanding the tow of water, is invention in no sense stove with its similar fuel magazine was a of the word. But, although no one of these better heater than a similar stove without elements of the contrivance involves inven such a fuel magazine. But the improvement tion, it is insisted that, taken all together, in the fireplace heater was the result merely they constitute a "combination," and that it of the single change produced by the introis this combination which is covered by the duction of the fuel magazine, but one eleletters patent. If a combination of unpat- ment in the combination. The new and imentable elements, as such, produces new and proved result in the utility of a fireplace useful results, there can be no doubt that the heater cannot be said to be due to anything combination is patentable. But there are in the combination of* the elements which certain conditions constituting the essential compose it, in any other sense than that it nature of a combination under the patent arises from bringing together old and welllaw, which we think are not met in this case. known separate elements, which, when thus The law upon this subject this court has brought together, operate separately, each in often stated:

its own old way. There is no specific quality "It must be conceded that a new combina of the result which cannot be definitely astion, if it produces new and useful results, is signed to the independent action of a single patentable, though all the constituents of the element. There is, therefore, no patentable combination were well known and in com novelty in the aggregation of the several ele mon use before the combination was made. ments, considered in itself.” Heating Co. v. But the results must be a product of the Burtis, 121 U. S. 286, 7 Sup. Ct. 1034. combination, and not a mere aggregate of Tested by these principles, we think it evi. several results, each the complete product of dent that there is no invention in the device one of the combined elements. Combined now before us. It is claimed that its effect results are not necessarily a novel result, nor is to prevent the grate from being clogged. are they an old result obtained in a new and But this effect only comes from raising the improved manner. Merely bringing old de- grate and leaving openings beneath it. It is vices into-juxtaposition, and there allowing an effect produced solely by the openings be each to work out its own effect without the neath, and is not in any way due to the presproduction of something novel, is not inven ence of the grate above. Thus, even if the tion. No one by bringing together several appliance operates as claimed, its operation old devices without producing a new and use is the result of no combined action, but is ful result, the joint product of the elements due entirely to the openings below. If there of the combination and something more than were no grate above the pins, but a solid an aggregate of old results, can acquire a piece of metal or other substance, so that no right to prevent others from using the same water could enter the sewer except through devices, either singly or in other combina the openings left between the pins, the tendtions, or, even if a new and useful result is ency of the flow of the water through those obtained, can prevent others from using some openings would not be affected, and the only of the devices, omitting others, in combina- result would be to diminish the flow of water tion." Hailes v. Van Wormer, 20 Wall. 353. into the sewer in a given time by the quantity

“The combination to be patentable must which would enter above if the place were produce a different force or effect or result, grated. It seems manifest, indeed, that the in the combined forces or processes, from that only practical operation of this device is to given by their separate parts. There must increase the utility of the sewer by elevating be a new result produced by their union; if the grate, and so rendering it easier for the not so, it is only an aggregation of separate water to enter. An attempt was made to elements.” Reckeudorfer v. Faber, 92 U. S. show by the testimony of a person who had 317.

observed the operation of one of these grates “In a patentable combination of old ele made in a circular form that its use resulted ments all the constituents must so enter into in giving a circular motion to the water, and it as that each qualifies every other. Το that the debris was carried to the periphery draw an illustration from another branch of of the circulating fluid, and thereby prevented the law, they must be joint tenants of the from accumulating on the top of the grate. domain of the invention, seized each of every But, if this be true, it is manifestly a result part, per my et pour tout, and not mere ten of leaving the open spaces between the pins, ants in common, with separate interests and and having the grate circular in form. Conestates. It must form either a new machine ceding that the water, just before passing of a distinct character and function, or pro through openings thus arranged, would ac

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upon it.

quire something of a circular motion, this statement in the bin is in direct conflict with would not be by any means the result of any

the rulings of the court is not sufficient to slow

that the statement was an inadvertence. combination between the opening below and

9. The fact, if true, that such evidence was the grate above. And, moreover, it cannot admissible for all purposes, does not disentitle de contended that the arrangement of a cir

defendant to a reversal because of a use of it cular grate supported on pins with the open

for purposes for which the court rejected it,

and in direct violation of the restriction placed spaces between them constitutes the invention, for it is expressly stated that the grates 10. The error in the misuse of the testimony may be of any form, round or square.

was not cured by a direction to the jury that

they should not consider any fact shown by The judgment below, holding that no in

such record, except the fact of divorce, and that vention is involved in this arrangement, is, they should not assume from anything in eviwe think, obviously correct, and it is there

dence that such divorce was granted on the fore affirmed.

ground of adultery.

In Error to the Circuit Court of the United

States for the Northern District of Illinois. (156 U. S. 361)

Mary Russell Beauchamp was married in WALDRON v. WALDRON.

September, 1865, to E. H. Waldron. They (March 4, 1895.)

lived in Lafayette, Ind., from the date of

their marriage until 1875, when they reNo. 97.

moved to St. Louis, the employment of the BILL OF EXCEPTION8_TIME OF FILING - CERTIFI husband calling him there. In 1877 they

CATE TO EVIDENCE-APPEAL/REVIEW OBJEC- | left St. Louis, and returned to Indiana,
TIONS WAIVED-Harmless ERROR_NEW TRIAL
-MISCONDUCT OF COUNSEL.

where they continued to live as husband 1. A bill of exceptions may be filed after the

and wife until June, 1886. At that date the term at which judgment was rendered, by agree

husband abandoned his marital relations, ment of parties given during such term.

and fixed his permanent residence in Chica2. Objection to the failure of appellant's counsel to deliver a bill of exceptions to appel

go. For 12 or 15 years, prior to June, 1886, lee's counsel, for inspection and correction, with

the husband, Waldron, had friendly relain the time fixed by a stipulation for extension tions with E. S. Alexander and wife, who of time for settling such bill, must be made lived in Chicago; Waldron dealing with when the bill is settled, to be available. 3. Where appellee or defendant in

Alexander in a business way, and also call

error moves for a new bond after entry of the case on ing socially at his residence, and Alexander the docket in the supreme court at the return visiting Waldron when he came to Lafay. term, he waives an objection that the case was

ette. In February, 1886, E. S. Alexander not docketed in time. 4. The words, "which was all the testimony

died, leaving a widow. Subsequently, Mrs. offered on the trial of the cause," immediately Waldron filed in the superior court of Tipfollowing the evidence in a bill of exceptions, pecanoe county, Ind., a suit for divorce will be treated as meaning all the evidence, where all the recitals in the bill show that the

against her husband, which ripened, in June, word “testimony" was used as synonymous with

1887, into a decree granting the divorce, and "evidence."

giving her $10,000 alimony. In October, 5. In an action against a woman for alienat

1887, E. H. Waldron married Mrs. Josephine ing the affections of plaintiff's husband. the court admitted the record of proceedings for a

P. Alexander, the widow of E. S. Alexander. divorce previously obtained by plaintiff, for the In June, 1888, Mary Russell, the divorced sole purpose of proving the fact of divorce, and wife of E. H. Waldron, sued Mrs. Josephine forbade the reading or stating to the jury any

P. Waldron, the former Mrs. Alexander, averments of the petition reflecting on defendant. It also admitted in evidence the statute

in the circuit court of the United States for of the state in which such proceedings were the Northern district of Illinois. The had, for the sole purpose of showing the law

grounds of this action are stated in her comunder which the divorce was granted. Plaintiff's counsel, in their argument to the jury,

plaint as follows: used such record and statute for the general (1) “Whereas, the said defendant, contrivpurposes of their case, stated the averments of ing, and wrongfully, wickedly, and unjustlythe petition which assailed defendant's character, and put them in juxta position with such

intending, to injure the said plaintiff, and statute and the testimony of certain witnesses,

to deprive her of the comfort, fellowship, to produce the impression that the divorce was society, aid, and assistance of Edwin H. granted on the ground of adultery between de

Waldron, the then husband of the said plainfendant and plaintiff's husband. Held such misconduct of counsel as to require reversal.

tiff, and to alienate and destroy his affec6. The fact that defendant objected to the tion for said plaintiff, on, to wit, the 6th day admissibility of such record and statute for

of June, A. D. 1886, and on divers other any purpose, and that they were admitted for a

days and times between said 6th day special purpose, did not constitute a failure to except to the misuse of such testimony, or au of June, A. D. 1886, to the 21st day of June, thorize its use for other purposes, for which it A. D. 1887, at,” etc., "wrongfully, wickedly, was not, and could not be legally admitted.

and unjustly debauched and carnally knew 7. Where defendant excepted to a misuse of the evidence by counsel in argument, when first

the said Edwin H. Waldron, then and there made, the fact that the same misuse was after still being the husband of the said plaintiff; wards made, without exception, does not disenti and thereby the affection of the said Edwin tle defendant to reversal.

H. Waldron for the said plaintiff was then 8. Where the bill of exceptions shows that the objectionable averments of such petition

and there alienated and destroyed, and also, were conveyed to the jury, the fact that such by reason of the premises, the said plaintiff

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