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ents, and congress, all had in view the rights obtained by them in foreign countries beof the inventor at the time when he was to fore taking out an American patent. "In receive or be debarred from receiving a pat the meantime," the commissioner of patents, ent for his invention, and not his apparent in his annual report as late as 1887, said, rights at the date of his application. Hence, “they [applicants for American patents) are the words, “by reason of the same having engaged in manufacturing and putting upon been patented in a foreign country more than the market the article or improvement, but six months prior to his application," as found warning the public that the patent is apin the act of 1839, were changed in the re plied for, the effect of which is to give toen port of the revisers and in the report of the the absolute control and monopoly of the inoriginal bill presented by the house commit-vention, and to deter all other inventors tee on patents, so as to read, "by reason of from entering upon the same field of invenhis having first patented it in a foreign coun tion and from manufacturing the article." try.”

We need not say whether these consideraWe cannot adjudge that the words, "more tions were or were not sufficient to induce than six months prior to his application," in the change first made by the twenty-fifth the act of 1839, were carelessly dropped, or section of the act of 1870, and perpetuated that congress did not have in mind the differ in the existing statute. They are referred ence between a clause declaring that an in to only as showing what congress may have ventor should not be debarred from receiv had in view when it provided, as it did, that ing a patent for his invention "by reason of an invention covered by a foreign patent, the same having been patented in a foreign obtained or caused to be obtained before an country more than six months prior to his American patent is granted for the same in. application," and a clause declaring that he vention, should be free to the American pubshould not be so debarred “by reason of its lic as soon as it became by reason of the (the invention] having been first patented or expiration of the foreign patent free to the caused to be patented in a foreign country." | people of other countries. If this principle We have no authority to add to the clause operates harshly upon inventors in certain last quoted the words, “prior to his applica cases, it is for congress wuose discretion is tion." To do so would be to legislate, and not subject to judicial control, to make pronot to interpret and give effect to the statute vision for those cases, if it be possible to do as passed by congress.

so without such injury to the people of our Much has been said about the intention of country as ought not to be inflicted upon congress, as manifested by its legislation, them. to deal liberally with inventors, especially And it may be stated, in this connection, those who were citizens of the United States.

that congress allowed the twenty-fifth secThis is true. But it is for congress to pre tion of the act of 1870 to stand, although the scribe the conditions upon which it will se commissioner of patents, immediately after cure to inventors the exclusive right to their the passage of that act, ruled that it had inventions. What may be due to invent changed the prior law so as to limit an ors is a matter about which there may well American patent to expire at the same time exist differences of opinion. It is the prov- *with the foreign patent of the shortest term ince of the legislative branch of the govern covering the same invention and issued bement to say when a patent to an inventor fore the American patent, although after the shall expire, and therefore, when the public application therefor was made. If, as is may enjoy, without charge, the benefit of Insisted, the change was not intended, and the invention covered by it. We can very was effected only by words incautiously well understand how the existing statute used, or not used with any purpose to inmay, in some circumstances, operate injuri troduce a new rule for the limitation of the ously to an American inventor who, in ad. term of an American patent, some action dition to the exclusive rights granted to him upon the subject, it may well be assumed, in this country for the term of 17 years, would have been taken by congress after the wishes to secure a monopoly for his inven passage of the act of 1870. tion in other countries; for, if he obtains The Revised Statutes of 1874 were adopted, foreign patents for his invention before ob it must be presumed, with the knowledge taining one here, the American patent is on the part of congress of the construction limited by law, whether it is so expressed previously placed by the patent office upon or not in the patent itself, * to expire with the twenty-fifth section of the act of 1870. the foreign patent having the shortest term. This presumption is strengthened by an exThis is the case as it appears from the amination of the act approved February 18, standpoint of the patentee, without regard 1875, entitled "An act to correct errors and to the interests of the American public. to supply omissions in the Revised Statutes

But it is to be remembered-at least it of the United States." 18 Stat. 316, c. 80. may be assumed that congress was advised That act, upon its face, shows that tlie en-that action by the patent office upon ap tire revision of 1874, after it took effect, was plications for patents was often unduly and carefully re-examined for the purpose of aspurposely delayed by applicants until they certaining whether there were could reap the full benefit of the monopoly omissions in the work of revision. Now it

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is inconceivable that the difference in the wording of the twenty-fifth section of the act of 1870 or of section 1887 of the Revised Statutes, when compared with the act of 1839, could have escaped the attention of congress, especially as the act of 1870 had been interpreted as introducing a new rule in respect of the term of an american patent, where the same invention was covered by a foreign patent previously issued. The act of 1875, for the purpose of correcting errors and omissions, amended or repealed nearly seventy sections of the Revised Statutes. Still further,-as an examination of the statutes will show,-since the Revised Statutes went into operation nearly 800 sections, other than those referred to in the act of 1875, have been amended or repealed. But no amendment has ever been made of section 4887.

The rule prescribed by the twenty-fifth section of the act of 1870 having been reproduced in section 4887 of the Revised Stat. utes, and the latter section never having been amended, we ought not, after the lapse of nearly 25 years from*the passage of the act of 1870, place upon its twenty-tifth section, or upon section 4887 of the Revised Statutes, which took its place, any interpretation other than that which the ordinary, natural meaning of their words import.

Our answers, therefore, to the questions certified are that:

Under the facts stated, the invention for which the United States patent to Bate was issued was “previously patented in a foreign country," within the meaning of those words in section 4887 of the Revised Statutes, and the United States patent expired, under the terms of that section, before the expiration of 17 years from its date.

It is so certified to the circuit court of appeals.

its acceptance of the act, describing the route of its road as from Amelia Island to Cedar Keys. It thereafter caused this line to be built, paid the contractors with first mortgage bonds issued in accordance with the improvement act, and afterwards for a tiine made payments to the trustees, as required by that act, and the trustees applied the same to payment of interest on the bonds. The road was completed in 1861, but, the company having then failed to pay interest, the trustees took possession, and sold the road to the highest bidder. Held, that although the language of the general improvement law and of the law of December, 1855, designated the main line as running from Amelia Island to Tampa Bay, yet the acts of the trustees were a recogni. tion of the road as actually constructed; and there was consequently no ground for the contention that they had no authority to sell the road under the provisions of the improvement act.

2. A sale of a railroad under the provisions of the general improvement law of Florida (act Jari. 6, 18.1.), made during the war of the Rebellion by the persons acting as governor and of. ficers of the state, in their capacity as ex officio trustees of the general improvement fund, must be recognized as valid, under the settled doctrine that the acts of the rebellious states in their individual capacities,-executive, legislative, and judicial,--so far as they did not tend to impair the supremacy of the national authority or the constitutional rights of citizens, are to be treated as valid and binding.

3. An unexplained delay of nearly seven years in asserting the alleged lien of railroad mortgage bonds, after a sale of the road under the provisions of the general improvement law of Florida (Act Jan. 6, 1855), during which time new bonds are issued by the purchasing company to innocent holders. is laches sufficient to preclude the holders of the original bonds from attempting to enforce their claim.

Appeal from the Circuit Court of the Unit. ed States for the Northern District of Flori. da. *This was a suit in equity, brought for the purpose of subjecting certain railroad property, formerly in the possession of a corporation known as the Florida Railroad Company, to the effect of an alleged len thereon of second mortgage bonds of that company, some of which bonds were held and owned, as averred, by the complainants. The vari. ous bills filed in the cause, upon which proceedings were had, were dismissed by the court below, and permission was denied certain of the complainants and others to file what was styled by them a bill of supplement, reviror, and amendment against the original defendants and others. The complainants were allowed an appeal to this court.

The Florida Railroad Company was a corporation organized under an act of assembly of the state of Florida, approved January 8, 1853. By this, the act of incorporation of the company, all persons who should become subscribers for stock thereof were enabled “to purchase, receive, retain, and enjoy to them and their successors and assigns, lands and tenements, goods and chattels,

and the same to grant, sell, mortgage, and dispose of," etc. The seventh section of the act provided that the company should have the right and privilege to construct and complete a railroad, to commence

(156 U. S. 618)
JOHNSON et al. v. ATLANTIC, G. & W. I.

TRANSIT CO. et al.
(March 4, 1895.)

No. 77.
RAILROAD COMPANIES SALE OF ROAD UNDER
FLORIDA IMPROVEMENT ACT AUTHORITY OF
TRUSTEES--EFFECT OF REBELLION-LACTIES.

1. The F. R. Co. was incorporated by the state of Florida by Act Jan. 8, 1853, to construct a road from some arm of the Atlantic Ocean in East Florida, in the most eligible direction, to some arm of the Gulf of Mexico in South Florida, south of the Suwanee river. The route se lected under this provision began on Amelia Island, and terminate at (edar Keys. Afterwards, January 6, 1855, the general improvement act of the state was passeil, which designated (section 4) certain lines of railroad as proper to be aided under its provisions, among them being

line described as running from Amelia Island to Tampa Bay, “with an extension to Cedar Key." In December of the same year, the leg. islature authorized the F. R. Co. to build, under the provisions of the improvement law, a line described in the same language. Shortly after the passage of the general improvement act, the company notified the trustees designated thereby of

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in East Florida, upon some tributary of the terest of said sinking fund investment as it Atlantic Ocean, within the limits of the may accrue. Said trustees shall also destate of Florida, having a sufficient outlet to mand and receive from each railroad comthe ocean to admit of the passage of sea pany named in this act the amount due to steamers, and thence to continue, in the the internal improvement fund from said, most eligible direction, through the state, to railroad company, according to the provisions some point, bay, arm, or tributary of the herein contained, on account of interest on Gulf of Mexico, south and east of the Suwa the bonds issued by said company. nee river, having a similar outlet; and that, “Sec. 3. Be it further enacted, that all so soon as practicable after the organization bonds issued by any railroad company under of the company, a competent engineer, under the provisions of this act shall be recorded in the direction of the president and directors, the comptroller's office and so certified by should proceed to locate the eastern terminus, the comptroller, and shall be countersigned and survey the route of said railroad to the by the state treasurer, and shall contain a southwestern terminus, and should make the certificate on the part of the trustees of the proper estimates and the necessary charts internal improvement fund that said bonds and diagrams, which should be filed in the ot are issued agreeably to the provisions of this fice of the company.

act, and that the internal improvement fund, On January 6, 1855, an act of assembly of for which they are trustees, is pledged to the state of Florida was approved, entitled pay the interest as it may become due on "An act to provide for and encourage a lib said bonds. All bonds issued by any raileral system of internal improvements in this road company under the provisions of this state." The declared purpose of this act act shall be a first lien or mortgage on the was to carry out a provision of the constitu roadbed, iron, equipment, workshops, depots, tion of the state for the encouragement of in and franchises; and upon a failure on the ternal improvements, making it the duty of part of any railroad company accepting the the general assembly to ascertain by law provisions of this act to provide the interest proper objects of improvements in relation as herein provided on the bonds issued by said to roads, etc., and to provide for a suitable company, and the sum of one per cent. per application of such funds as might be ap annum as a sinking fund, as herein provided, propriated for such improvements. The first it shall be the duty of the trustees, after the section of the act provided for the setting expiration of thirty days from said default apart of certain lands granted to the state or refusal, to take possession of said railroad by the United States, and of the proceeds of and all its property of every kind and ad. the sales made and to be made thereof, as a vertise the same for sale at public auction to fund to be called the internal improvement the highest bidder, either for cash or adfund of the state of Florida, and provided ditional approved security, as they may think that such lands and proceeds were to be most advantageous for the interest of the instrictly applied according to the requirements ternal improvement fund and the bondhold. of the act. Other essential provisions of the

The proceeds arising from such sale act were as follows:

shall be applied by said trustees to the pur“Sec. 2. Be it further enacted, that for chase and cancelling of the outstanding bonds the purpose of assuring a proper application issued by said defaulting company, or inof said fund for the purposes herein de corporated with the sinking fund: provided, clared, said lands and all the funds aris that in making such sale it shall be condi. ing from the sale thereof, after paying the tioned that the purchaser shall be bound to necessary expenses of selection, management continue the payment of one-half of one per and sale, are hereby irrevocably vested in cent. semi-annually to the sinking fund until five trustees, to wit, in the governor of this all the outstanding bonds are discharged, state, the comptroller of public accounts, the under the penalty of an annulment of the constate treasurer, the attorney-general, and tract of purchase, and the forfeiture of the the register of state lands, and their suc purchase money paid in. cessors in office, to hold the same in trust “Sec. 4. Be it further enacted, that a line for the uses and purposes hereinafter pro of railroad from the St. Johns river, at vided, * and to pay out of such fund, Jacksonville, and the waters of Pensacola agreeably to the provisions of this act, the Bay, with an extension from suitable points interest, from time to time, as it may be- *on said line to St. Marks river, or Crooked come due on the bonds to be issued by the river, at White Bluff on Apalachicola Bay, different railroad companies under authority in Middle Florida, and to the waters of St. of this act; also, to receive and demand, Andrews Bay, in West Florida, and a line semi-annually, the sum of one half of one per from Amelia Island, on the Atlantic, to the cent. (after each separate line of railroad is waters of Tampa Bay, in South Florida, completed) on the entire amount of the bonds with an extension to Cedar Key, in East issued by said railroad company, and in Florida; also a canal from the waters of St. vest the same in stocks of the United States, Johns river on Lake Harney to the waters or state securities, or in the bonds herein of Indian river, are proper improvements to provided to be issued by said company. be aided from the internal improvement Said trustees shall also invest the surplus in fund, in manner as hereinafter provided.

ers.

"Sec. 5. Be it further enacted, that the road, pay to the trustees of the internal imseveral r: ilroads now organized or chartered provement fund at least one-half of one per by the legislature, or that may hereafter be cent. on the amount of indebtedness or bond chartered, any portion of whose routes as account every six months as a sinking fund, authorized by their different charters and to be invested by them in the class of seamendments thereto shall be within the line curities named in section two, or to be apor routes laid down in section four, shall have plied to the purchase of the outstanding the right and privilege of constructing that bonds of the company; but it shall be dispart of the line embraced by their charter on tinctly understood that the purchase of said giving notice to the trustees of the internal bonds shall not relieve the company from improvement fund of their full acceptance paying the interest on the same, they being of the provisions of this act, specifying the held by the trustees as an investment on ac. part of the route they propose to construct; count of the sinking fund. and upon the refusal or neglect of any railroad company now organized to accept, with “Sec. 14. Be it further enacted, that for all in six months from the passage of this act, payments made by the trustees of the interthe provisions of the same, any other com nal improvement fund on account of interest pany, duly authorized by law, may under- for any railroad company agreeably to the take the construction of such part of the provisions of this act, said trustees shall deline as they may desire to make, and which mand and receive from said railroad commay not be in progress of construction un pany equal amounts of the capital stock of der a previous charter.

said company, which stock shall entitle the

internal improvement fund to all the priv. “Sec. 8. Be it further enacted, that on the ileges and advantages of private stockholdcompletion of the grading and the furnish ers." ing of the cross-ties of twenty miles con *On March 6, 1855, D. L. Yulee, president tinuously, and every additional ten miles, as of the Florida Railroad Company, wrote to provided by this act, said railroad company the president of the board of trustees of the are hereby authorized to issue coupon bonds, internal improvement fund as follows: having not more than thirty-five years to run, “Sir: By instruction of the board of diand drawing not more than seven per cent. rectors of the Fla. R. R. Co., I beg leave to annual interest, payable semi-annually in inform the board of trustees of the int. imp. the city of New York or Tallahassee, at the fund that the company make full acceptance option of the purchaser, at the rate of eight of the terms and provisions of the act passed thousand dollars per mile for the purchase at the late session of the general assembly and delivery of the iron rail, spikes, plates, relative to a system of internal improveand chairs, and after the rail has been laid ments in the state. down on the line, the additional sum of two “I beg leave to say that they propose to thousand dollars per mile for the purchase construct a road from Amelia Island, in the of the necessary equipments; and said bonds direction of Tampa, as far as a point proper shall always afterwards constitute and be a for divergence, to Cedar Keys, and from said first lien or mortgage upon the roadbed, iron, diverging point to Cedar Keys, by way of equipment, workshops, depots, and fran- extension; and that if the amendment to the chises.

charter of the company, now pending in the

general assembly, is granted, they will also “Sec. 11. Be it further enacted, that it shall construct the balance of the road from the be the duty of the president and directors of diverging point to Tampa." every railroad company accepting the pro An act to amend the act incorporating the visions of this act, while the road is under Florida Railroad Company was approved on construction, to report to the trustees of the December 14, 1855. It contained, among othinternal improvement fund every six months, er provisions, the following: "That the act under the oath of the president and at least incorporating the Florida Railroad Company, two of the directors, the gross receipts of approved the 8th day of January, A. D. 1833, said company from the traffic of the road for is hereby amended so that the said company the past six months, the cost of transporta- shall bave power to construct the railroad tion and repairs, and the total amount of the from Amelia Island on the Atlantic to the net receipts of said company; and it shall be waters of Tampa Bay in South Florida, with the duty of the president and directors to pay an extension to Cedar Keys in East Florida, to the trustees of the internal improvement under the provisions of an act to provide for fund fifty per cent. of said net receipts every and encourage a liberal system of internal six months, which sum or sums shall be improvements in this state, approved the 6th applied by the trustees of the internal im- day of January, A. D. 1855. • • That provement fund toward the payment of the the president and directors of the Florida interest of any bonds issued by said com Railroad Company may set off any portion pany.

of their line to persons desirous of con. “Sec. 12. Be it further enacted, that every structing the same, and in that event such railroad company accepting the provisions portion may have a distinct organization, of this act shall, after the completion of the with all the grants, rights, powers, duties,

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and privlleges conferred on the Florida Rail On November 3, 1866, the trustees of the id. road Company, with the right to adopt a dif ternal improvement fund conveyed to "Edferent name, in order to keep the stock ac ward N. Dickerson and his associates” all count and liabilities separate: provided, that the railroad property of the said company two months' notice shall be given to the by an indenture which stated in its recitals board of trustees of the internal improvement the provisions of the third section of the infund of such set-off or assignment, and a ternal improvement act, and also that the copy of the same be filed with said board of Florida Railroad Company had entirely failtrustees."

ed since November 5, 1863, to pay the oneSubsequently to the approval of this act half of 1 per cent, seiniannually on the bonds the following letter was written:

issued by it according to the provisions of "Tallahassee, December 6, 1858. the internal improvement act, and also the "To the Trustees of the Internal Improve interest on the same; that, according to the ment Fund:

provisions of the third section of that act, “Gentlemen: Doubts having been express the trustees of the internal improvement ed as to the sufficiency of the notices hereto fund on October 6, 1866, took into their posfore given as to the efficacy of the terms of session the railroad and all its property of the first section of the act of December, 1855, every kind, and advertised the same for sale amending the charter of the Florida Rail for cash at public auction, at the town of road Company in placing the part of the Gainesville, Fla., on November 1, 1866; that, route between the Cedar Keys and Tampa on the day and place last mentioned, the Junction within the provisions of the inter terms of the sale were announced, namely, nal improvement act without any special no that the sale and the rights of the purchaser tice, I hereby and now, to put at rest any at the same were subject to all the condi. future doubts, formally notify the trustees tions of the internal improvement act; that of the full acceptance by the Florida Rail the railroad and all its property of every road Company of the provisions of the act kind was then and there put up for sale, of January 6, 1855, entitled 'An act to pro and was purchased by Isaac K. Roberts, he vide for and encourage a liberal system of being the highest and best bidder, having internal improvements' for that part of the bid the sum of $323,000 for the same; and route designated in their amended charter that the said Isaac K. Roberts had directed which lies between Tampa and the point of that the railroad and all the property thereof junction with the Cedar Keys extension; or, should be conveyed to Edward N. Dickerson in other words, for all that part of the routes and associates. covered by their charter which may not be Immediately upon the making of this conregarded by the trustees to be included in veyance, the purchasers of the said property the effect of the notice filed by them of the organized themselves into a new company, date of March 6, 1855.

which they called the Florida Railroad Com"I have the honor to be, respectfully yours, pany. On May 12, 1869, they issued bonds

"D. L. Yulee, aggregating in amount $2,300,000, bearing “President of the Florida Railroad." interest at the rate of 7 per cent. per annum, Both this letter and that dated March 6, maturing January 1, 1900; and, to secure 1855, were certified by the commissioner of the payment*of the principal and interest of lands and immigration of the state of Flori the same, on May 26, 1869, they made a conda on April 7, 1882, to be on file in his office. veyance of the railroad property, in trust, to

In accordance with the provisions of the John A. Stewart and Frederic A. Conkling. internal improvenient act, part or all the Afterwards the said purchasers formed a first mortgage bonds authorized thereby were new corporation, having the name of the issued, and the company also issued second Florida Railroad Company, under the promortgage bonds, which were made a lien on visions of an act of assembly approved June the railroad property, inferior to that of the 24, 1869, entitled "An act to perfect the pubfirst mortgage bonds, but a first lien on the lic works in this state," which provided, in company's lands within the town sites of the twenty-ninth section thereof, as follows: Fernandina and Cedar Keys, and on other "That in all cases of seizure and sale of the lands of the company along the line of the railroad property and franchises of any comroad. To secure the payment of the principal pany by the trustees of the internal improveand interest of the second mortgage bonds, ment fund under the provisions of the act to all the property of*the company was convey provide for and encourage a liberal system ed by it, in the year 1850, to James F. Sout of internal improvement, the purchaser or ter and John McRae, in trust.

purchasers shall be entitled to do whatever The road was completed between Fernan acts may be necessary to enable him or them dina and Cedar Keys in March, 1861; and, as to exercise and enjoy the franchises granted appears by the testimony of Yulee, a separate by the charter of incorporation under the contract was made on August 20, 1858, for provisions of the said original charter avd the construction of a portion of that part of the amendments thereto." road which extended from Waldo, a point By an act approved January 18, 1872, it on the line between Fernandina and Cedar was provided that the corporate company Keys, to Tampa Bay.

owning the property forinerly known as the

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