.his",faYQf:'

in of. bp,tb para be rese;rYied to coverall prospective the f\ll)d paid ovef!to', the libelant. fail in ;h;s ,defense,he will by this di1fl'lrence in upon so paid over,·." , ' , ' . ' maybe in herewith, $300 for ip. this actipI\. Such will be the future practice., Hererl'1sQ, of the respondent'a the libelan orderfortbe withdrawal of the whole or any specific porUqn of the sum. teqd,er\l4". interest on so much of the libelant's claiIIl will cel1l>e. ,.' "

will be

costll: :whi91t Ju,: tnatease

suph

(Df.Izrte&.

S. D. MtBBO'WIi, E.

D. .TUlle 16, 1ll9J.>

(No. 8,491.)

.,. " "I.

L' 8Jn'PJ'nt'G-Pmo RBGtlLA'l'iON. . .PASSENqBR 'BOATS On.. , , Qf l1etroleum and other Inflammable ar: ticles 6n pa.,l\senger provides that" rll'ftned petroleum, whlcb wlil not Ig. ;ntteat a temperature lesil'tl1an W; deg. of Fahrerthelt thermometer. may becarried ,. ,l.\ch ,steamers IJPQn routes where there is no other practicable mode of transporting It." ' HeW; t,hat petroleum of tbe reqUired test could not be carried 'On 'a passenger steamer W apmatof tranllSblpment, when It was practicable to , tra,nsport.such petroleum, by rail, for about the same rat9. alttlOugb there was DO iall. route from the point Of, to the point of consignment.. L SAMII!"-'''PRA:<i+lchLB'''TRA.NsPoRTATlON. . . , 'l'be word "practicable, .. 88 used in the statute, means oommercially practloable. .as r,rowyhysiQlUly or mechanifally practicable. U. S. Y. Tlwm. bttrq, 6J'ed. 41, and fl. 8. v. Wise, 7 Fed. Rep. 1110, followed.
· f

J,' R. E1'1l! owners ofthe lltelltnerJ3entdn,'for transporting coal oil and gasaon stelii,n.hllat contrary to the provisions of Rev. St. § 4472. for the'United States· . sl!'id se.ction "nQ hay, loose cotton, or loose
camphene" ,Cir1}de .lH.!e dlin1tetous naphtHa, benzine, benzole,' coal oil, eXI)losive burning fluids, or be cart-ied JRs freight or used as stores on '.' .:". *'. l{etined petro]euIn,which Jess 'deg. ther. fJ LoiiKl $llch ateiuutlr uiion there

.

Robert Roehrig and Mrs.

Or other like

Will t1otigJ11te at'a

i,

'

':

'

• ,:
  

<)'.1:;"

:'::',UJ

'J

';,

-,",

>

cHE BENTON." .

J 303

is no otn6lfpracHcable mode, oltranspoiting it, under such regulations I..!lshall· be prescribed, by the board of supervising inspectors, with the :of the secretary of the treasury," etc. It was admitted that the 'gasoline was carried contrary to the statute, and as to the coal oil the facts were agreed substantially ns follows: The Benton was engaged in navigating the Mississippi and.Missouri rivers, and the .Annie 'Dell was engaged in, navigating the Osage river. There: was 'a contract between them whereby the Annie Dell received directly from the 'Benton freight which was to be carried up the Osage. On June 24 and on August 10, 1891, the Benton received, at St. Louis, certain barrels: of refined· petrolellrfij 'which, as declared in the statement of facts, "would not ignite at less than 100 [it should be 110] deg. One of these shipments was put on the wharf at Bonnett's Mills, and the other at Osage City, both in the state of Missouri, and from there were taken on board by the Annie Dell, and carried to 'points on the Osage river. There Were railroad lines from St. Louis to Bonnett's Mills and to Osage City,but not to the points: on the Osage rivel to which the goods were consigned. The difference b 'tween the steamboat 'and rail rates between the first mentioned points was i.nsignificant. Goo. D. Reyil.Olds, U. S. Atty. ' ' EleneiOUll'Smtith, fordetendants. THAYER, District Judge. Under the agreed statement it does not appear that the steamer had the right, under any circumstances, to carry the coal oil in question, as the statement of facts recites that the coal oil carried would not ignite "at less than 100 deg. Fahrenheit." The inference is that it would ignite above that temperature. It will be observed that coal oil cannot be carried, under any circumstances, on a passenger steamer, unless it will bear a test of 110 deg. Fahrenheit. Rev. St. § 4472. I presume, however, that the stipula,tion was intended to read "110 deg.," and will accordingly decide the case on that assumption. The word "practicable," as used in the statute, (section 4472,) has been held to mean" commercially practicable," as distinguished from" physically or mechanically practicable," and that seems to be a very reasonable, if not a necessary, interpretation of the statute. U. S. v. Wise and U. S. v. Thornburg, 6 Fed. Rep. 41, and 7 Fed. Rep. 190. It appears from the agreed statement that there was a practicable mode the coal oil in question from St. Louis to Osage City and of Bonnett's Mills otherwise than by steamer. It might have beeen carried by rail between those points for about the same price charged by the steamer. On the other hand, it appears that there was no practicable mode of transporting it from Osage City and Bonnett's Mills to the points further up the Osage river to which it was destined than by steamer. Does this latter fact render the transportation of the commodity from St. Louis to Osage City and Bonnett's Mills by a passenger steamer lawful? The court decides this question in the negative. It was not commercially impracticable, as the agreed statement shows) to

304

FEDERAL REf9R'rER,

vol. 51.

ship the oil "to its tiltimate destination partly by rail ana partly by water. It had to be unloaded, in any event, at Osage City and Bonnett's Mills, and to be thence forwarded to its destination by another steamer, as the Bteamers that ply on the Missouririver cannot ordinarily ascend the Osage; and the total cost of transportation over the whole route, if carried from St. Lottis to the latter place by rail, would not, as it seems, have been materially greater, than if carried for the whole distance by water. If it be Mnceded that inflammable commodities, like coal oil, can be lawfully carried on passenger steamers merely because the ultimate point of destination is a short. distance off the: line of a railroad, then it would frequently happen that such coinrnodities would be carried for, long distances by water, ,thereby enhancing the imd,defeating the be·neficent purposes of the act. The court is accordingly of the opinion that when,' as in the present case, it iEl commercially practicable to transport sU'ch a wmmodity,>8.s coal oil' by rail for a considerable portion of thedisfunce to be: coYered,llndtherice by water to its ultimate destination, that method of tranSpqrtation is the 0111yone thatoan be lawfully employed; even though it is 'possible to transport it for the, entire distance by water, and. not: possible to' transport it 'he entire distance by rail. Entertaining these views, judgment will be entered for the government on the second count, and also on' the first count, of the information.

BOSTON & A. R.CO. ,. PULLMAN'S PALACE CAR CO.

805

BOSTON

&: A. R.

CO.

et al.

'!1. PULLMAN'S PALACE CAR CO.

(Circuit Court oj Appeals, First Oircuit. August 2,1892.)

No.9.

APPEALABLE 'ORDERS PEAL. INTERLOOUTORY DECREE .... PATENTS-CIRCUIT COURTS OIl'

Ap-

In. a suit for infringement of the usual decree for perpetual injunction and accounting was passed after"a full hearing on the merits. More than two months'thereafter defendant petitioned for a,rehearing and dilisolution of the injUl;lCtioll,.. whicb was afterwards denied. Pending this petition tbe circuit court of appeals was created. Held tbat, assuming the decree for injunction and accounting.to be' an interlocutory i1ecree, from which. an appealwonld lie to that l;ourt :within. 80. dlloYS under section 7 of the Bl;t creating it, (Act March II, j Supp. Rev. St. 901,Jyet the order denying the rehearing was not appealable; tor it was :. notan'tnterlocutory decree' or order continuing. an injunctiOl\, within ,the meaning (If that and it.is immateri,al that there was no right of appeal at, the time the, injUnction was granted. '., . ,"

rr

'Appea1 from the Circuit Court of the United States fot the District of Massach uiletts. Appeal dismissed. CaustenBi'owne, 'for appellants. O.K. O.lfield, Frederic1cP. Fish, ;ahd John S. Runnells, for appellees. Before PUTNAM, Circuit. Judge, I,lPd NELSON and WEBB, District Judges. PUTKAM, Circuit This is a bill.inequity, brought in the circuit court for the district of Massachusetts by the Pullman's Palace Car Company again!!t. :the appeUants, for an alleged infringe,ment of patents owned by the complainant. On the hearing of the merits on bill, answer and proofs, a decree for a perpetual injunction and for an accounting was passed by the circuit court October 9, 1890. 44 Fed. Rep. 195.·. October 11,)890, an injunction writ was issued, as ordered by the decree, and October 13, 1890, the writ was returned duly served. February 26; 1891, the respondents in the circuit court filed a petition fpra a dissolution of the injullction. September 8, 18131, 'aftetthe this court Was approved, the circuit court depetition for a and again, December 1, 1891, the following order was entered: "And now, to wit, December 1, 1891, it is ordered that the petition filed February 26,1891, for dissolution of the injunction herein, be denied." December 28, 1891, the oriKinal respondents filed a petition for an appeal to this court, which was allowed, with an assignment of errors as follows: l"That the court erred in denying the defendants' said petition for dissolution of injunctiqn upon the facts shown in support thereof.. That the order denying the petition for dissolution of the injunction was, in effect, an order cantin uing theinjllnctioll; .and. ,that the court erred in continUing the injuncfacts shown in ",opport of the petition for dissolution thereof." tion upon The IlppeaJ was duly entered in this court.) and the originalc?nlplail1ant, now the appellee, seasonab1y-March 19, 1892-, fil.ed amotion to v.51F.no.7-20