372

FEDERAL REPORTER,

vol. 48.

had been accomplished by the go\'ernment's assent, 'and in the wny provided by law, the government would not have lost anything. But I must hold the defeadants liable, for the reason that the govenlment never did assent, and was no party, to the defendants' ultimate design. The only arrangement the government made was that it would permit the removal of the goods from the New York bonded warehouse td the New Orleans bonded warehouse, leaving the parties, after the goods arrived there, to obtain by some new arrangement with the government the right to remove the goods to Mexico. Verdict directed for the plaintiff in double the atnount of the duties, with interest.

LoUISYILLE ,PUBLIC' WAREHOUSE Co. v. SURVEYORO]il PORTA-T LoUDVILLE.

(otrcuit Oourt, D. Kentucky; December 1, 1891.)
"

CuSTOMS DUTIES-REIMPOJtTED WHISXy-WITlID,RAWAL FROM ,BOND.

The tari:tf, act of I, 1890, (26 U. S, St. 624.) iI)section 22, that on the reimportation of an article manufactured in the United 'states. and once exwithout payiqg an internal revenqe tax, it shall pay a duty equal to ternal revenue tax o,n such article. SectIon 50 d,eclares that all-;Y merchan,dIse posited'in bond 'before the date of the act may be withdra}'vp' for consumption on payment of ,the duties ,in force before the act, arid that, when:iluch duties are based u1>0n the weight of the goods, the weight shall be taken at thl'! time of the withdrawal.' -Hel.d,tbatwhile, under the internal revenue law$,' the pr'oof 'of llpirits is deterinill,ed by weight. yet the tax is always assessed upon' !thegaJlon, measureJIlent,whet'her the spirits are above or below prOOf. and hence whisky. when withdrawn from bond, must pay according to the numtier of galli:ms at the tbne of imp9rtation and not at the time of withdrawaL. . . ' : .

At Law. Appeal from a decisionofthe board ·of general 8opralsers. GeO'l'ge W. Jolly, U. S. Dist. Atty., for surveyor. WillBon&- Thurn, for Warehouse Company.
BARR, J. .This is a proceeding filed by the Louisville Publie Warehouse (Jompany,asking for a review of'the decision of the board of general appraisers undel' the fifteenthsaction of an act of congress proved June 10, 1890:,(26 St. at Large, 138.) The Louisville Public Warehouse Company, nsthe importer and consignee of Mrtain' whiskies expor.ted from the United States, and afterwards, on" the<Yth day of January:,1890,:reimported into the United States,Mmplaius that said company was compelled to pay the -collector a tax of 7 gallons ot,whisky more than the lawautborize'd to'·be:collected. The warehouse· company imported and: entered into bond ;fbI' ing'five,burelsOf whisky on the 6th dayo! Ja:nual'yj 1890; and said company withdrew same on the.:,28th day· Of! Noveniber; 1890, and the ,difference in tbequantityof whisky entered into said:: ware. house in· January, 1890, and when withdrawn I 'O1l No:.vembel' 28,1890, was seven gallons,asascertainedrbyithe gauge at tM

LOUISVILLE PUBLIC W. H. CO. V. SURVEYOR OF PORT AT LOUISVILLE.

373

separate times. The company states the collector required the payment of tax on the quantity entered, which tax was paid under compulsion. The said company appealed from the action of the collector and the decision and action of the to the board of general collector was approved by them, and this is the decision said company asked to be reviewed. The defendant has demurred to the petition, and moves to dismiss the appeal. The petitioner's claim that the quantity of taxable whisky is to be ascertained at the time of withdrawal from the warehouse, and not at the time of the entry, is under a proviso in section 50 ofthe tariff act known as the "McKinley Bill," approved October 1, 1890; (26 St. at Large, 624.) . This proviso is as follows: ..Pr\:)Vided, that any imported merchandise deposited in bond in any public or private bonded warehouse, having been so deposited prior to the first day of Octpber, eighteen hundred and ninety, may be withdrawn for consumption at any time prior to February first, eighteen hundred and ninety-one, upon the payment of duties at the ra.tes in force prior to the passage of this act: provided, further, that when duties are based upon the weight of mer·· chandise deposited in any public or private bondedwarehpuse, said duties shall be levied and collected upon the weight of such merchandise at the time {)f its withdrawal." The cootentiol1of the warehouse company is that the duty on the fiVE> barrels of whisky reimported by it is by law based uptm its weight, and, therefore this duty should have been levied and collected on the weight of the whisky at the time oithe withdmwal, and not at the date of its importation. The twenty-second 'section of this act provides: .. That upon the reimportation of articles once exported, of the growth" product. or manufacture of the United States, upon which no internal tax; has been assessed 01' paid. .... ........ tlJereshall be levied, conected. and paid .a duty, eqllal to the tax imposed by the iQternall'evenue laws upon .artioles." Schedule H of said act provides that"The duty on brandy and other spirits.manufactured or distilled from grain ·or otller mliterials, and· not specially prOVided for in this act,two dollars.and . fifty cents per proof gallon." Sections 329. 1330. Each and eVl:lry gauge or wine· gallon of measurement shall be counted as at least one proof gallon; and the standard; for· determining the proof of brandy and other spirits or liquors of .anykind imported Shall be the same as that. Which is defined in· the laws· relating to. internal revenue: ljc, ... ljc prOVided, that it shall be laWfUl for· the secretary of the treasury. in his discretion, to authorize the.,ascertainment ,of the proof of wines,cordi/Jls, or liql\ors, qy distiUatloD Or qtherwislli in cases where it is impracticable to ascertain such proof by the means prescribed by t'xisting laws and regulations." Internal revenue tuxes, as well as customs duties. are assessed and ·collected on distilled spirits by the proof gallon, when the spirits are above proof; and it is now insiflted by the learned counsel for the petitioner that these taxes and duties ure ascertained and determined by weight, and not by gauge or measure. It is, however, true that taxes .and duties are collected on spirits on and by the wine gallon as well as the proof gallonj the wine gallon, when at or under proof, and the proof
U

374

FEDERAL RE:p0RTER,

vol.

gallon;. when above proof. That. is, when the spirits are above proof, the proof spirits are measured and weighed; but the tax or duty, as the case may be, is assessed and paid by the gallon as thus ascertained. Section 3249., Rev. St. U. S., defines proof spirits thus:
"Prootllpirits shall be beld to be that nlcoholic liquor whicbcontains onehalf its ,!olurne of aleoholof a specific gravity of seven thousand nine hundred and thirty-nine ten·thousandths (.7939) at sixty degrees Fahrenheit."

Thus the cubic measure or the volume of the spirits is always the 'basis of the assessment and collection of taxes and duties. If, however, the spirits are above proof, as defined in the statute,-that is, have more alcohol in proportion to the cubic measure than prescribed by the law,-then they are taxed accordingly. The proof of distilled spirits is, we believe, usually taken by comparing the weight of a certain volume of spirits with the same volume of distilled water. Alcohol is lighter than water; and hence, by weighing the distilled spirits, which contain both water and illcohol, the proof can .be ascertailled. This is an easier method than by distillation. But. the volume must be measured, because, if the spirits are only proof, or less than proof. as .prescribed by the statute, the tax is to be levied on the wine gallon by the express terms of the statute. See §3251, RAv. St. This is not the only reason why the spirits must be measured by gallons. The volume must be known before the proof gallons can be ascertained, by comparing. the weight of the spirits with distilled water. and' thus assessing. the tax. It is quite true, we believe, that a wine gall()D of231 cubic inches of distilled water contains 8.355 pounds, but the internal revenue wine gallon is never ascertained by pounds or weight. /l'hetax or dijty, as designated by the internal revenue laws and by the. tariff', iSBo much per gallon; and neither the tax nor the duty is baSed upon as used in the fiftieth section of the tariff of 1890. If the contention of thew-areHouse com pany was sustained, it would lead to the absurd conclusion that when liquors are at proof or under they would be taxed on the quantity imported and into the warehouse,and when over proof, .although of the same invoice, on the quantity at· the time of withdrawal,which might be much less. The proviso of·section 50 of this act should be construed with reference to other,parts .of the act and of existing laws, and I of opinion that the tax or duty upon whisky was not "baseduponthe weight of the. merchandise deposited," within the meaning of this proviso. 'l'he demurrer·· of the collector is therefore sustained, and his decision and that of the board'of Reneral appraisers is approved and affirmed.

CALIFORNIA ELECTRICAL WORXS V. HENZEL.

375

'VORKS 'V. HENZEL.

(Oircuit Oourt, N. D. Oal(fornia. December 7, 1891.)
1.

PATENTS FOR ]NVENTIONS-CONSTBUOTION OF CLA.m-ELECTRIC-LIGHTING BURNERS.

Gu-

S.

In letters patent No. 280,590, issued 'July 27, 1886, to F. Pinkham, as assignee of Jacob P. Tirrell, the claim is for, "in an electric.hghting gas-burner, a magnet for turning t1le gas-cock bY one electricimpUlse, cO!l1bined with a fixed eleotrod,e. a', and a mo.Vable, electrode, c'! normally in contact, and mechanism connecting the armature with the movable Ellectrode. to break the contact between a/ and d t)J,einstant aftar gas is turned OJl,.lLJld OL'CILte a sparkf9rjgnition, substantially as described." In the drawings a' designated a platinuJJ1 point on the fixed and d a small bent arm normll.1ly in contact wltii' the fixed 'electrode. Held, tliat the word and especially 81\, used .In :tile patent, tile platinum or other metll.1 pQints constituting tne poles of the circuit.
' '

BA.ME-INFRINGEMENT.

The mechanism being otherwise 8ubstantlll.1ly the same,.the fact that defendant'· apparatus which mo;ves direction. while the . patented aPPlloratll!l bas Ii vertical armature, which moves in a horlzontal direction, does Dot prevent Infringement.. , . ,
: '.

B.S,lME-,-P4ST

," When a patent hal been assigned, tOgether wtth all claims for pastlnfringementa, the faeti tnat a person, sued by the'aislilgnee' hli.s11l0t sold: BUyot the infrlnginr art!olell cslll1J8theasaJgnmetlt,and wstifles that helntendll,toliell,no more., wnotsumto Jurisdicti.QD, when it appear. that he still haa them in stiJdk,. and hall publIshed' aeatal0gu6 ol!eringthem for Ble. and that In bis an_er
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In Equity. Suit by tbeCalitorniaEleetrieal Works ,against. George L.lIenzel for in(ri'n'gement of patent. DeCree for injunction anel. an aeP9u,n¥ng. " . ' . " ' , ' , ' " , " ' :lAnghorne & Miller,' , &'j{Wfce, for defendaI1t. ,HAWLiY,J. This isa suit inequityfQrthe irifrlnp;ement of letters patent No: 230,590, granted to' George F. Pinkham, as the assignee of JJl,eob 27, 1880, fqrelectric gas-lighting is tetritqJ'ial grantee. of all rights under the stateoLCahforma. claims that the patent IS vOld,because the bill ,ofcomplaint alleges thatit,was uponthe joint application of the inventor and his assignee. It affirmatively appears by the letters pahmtthatJacob theinventor, made the application for the that, having assigned his right, title,and interest to George F. PinkhaJDl the letters were granted to Sl1W Pinkham. Complainant was allowed to amend his bill so ,as to conform to the proofs in this reBpect.. This obviates the necessity of investigating or deciding thequesan application for ,letters patent can be legally made jointly by' i,nventor and the assignee. ", claims the bill should be' dismissed because the only lnftingeinent shown committed before .theliBsignmellt to the com.that, inasmuch as there is a pla,in, speedy, and, adequat& equity bas no jurisdict1<?n.Tbe question whetperan ·.should be, ill '. upon the, facls pre'senfea in' each particular case. 'Secuoh 723, u. S:,pr9vides

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