808'

FEDERAL

vol. 52.

coosti'tutionislproduced by the declaration that the cQl)stitutioq is supreme." :M:rIJustice MILLER, in .Hender8on v. Mayor, U. S. 259, on this QUesti01ii says: ;. . . "ltiiSicleah'1iom the nature()f that whenever the statute ofa state' invades the domain of legi'slation which be-: longsexclusivelr to the congress of the United States, it is void, no matter under whftt'ellislf of powers it·mayfaUt'or how closely allie9to powers conced'etl the states." '.. '.' '!" . I conciude that the police' of"il state cannot to embrace a subject confided exclusively to congress by the constitution of the United 'StaW$, If the subject-matter of state legislation is included in grant of commercial power to congress, then the state enactment is vOitl, 4:iven if it passed in the exercise·of the .police power of the state. Tae authorities in support of this are numerous, and from them lCite :Ra.uroad Co.v. Husen, 95 U. S. 465; Orutcher v. Kentucky, 141 U.S. 47/1-1; Sup. Ct. Rep. 85l; Lei8y v. Hardin, 135 U. S. 108, 10 Sup. Ct. Rep. 681. are submitted };>1 counsel for petitioner, but, holding Other as I do on tbematters I have mentioned, I do not find it necessary to pass upon. them. : . For the reasons that I have given I conclude that the act of the genentitled" An act to protect eral assembly6Hhe state of N seed buyers it(:North Carolina," being chapter 331 of the Acts for the year 1891; 'isjrioperative and void, and that the petitioner is in custody in violatiollof tbe constitution of the United States. :t therefore order that he be diSoharged Jrom custody.

STRAUSKY et al, ".ERHARDT, Collector.

(Circuit

S. D. Nci»York.

November 17,.1892.)

1.

CU8'l'QMS DU'l'lllIs-AC'l' Ol!'.

Blue' and white kitchen utensils, consisting' of pots, kettles, saucepans, ooffeepots, and similar ware, made of sheet steel, and glazed or enameled, not to be dutiable. as "hoUow ware, coated. glazed. or tinned. n under Sohedule C. i>ar. 201. at 80ents per pound, but dutiable at 45 'per cent. ad as· "manufacturers' articles or wares " * * composed wholly or in part of iron. steel. etc., .. under Schedule C,par. 216, of the act of March 8, 1888. "Hollow ware" means cast-iron ware, in the act of 1888.

8.1888....,HoLLOWWARB· .

2.

SAME.

At Law; Motion for a direction of a verdirt. Granted. Maurice.Strausky & Co. imported into the port of New York, in January,February, and March, 1890, certain steel kitchen utensils, hollow in form, glazed or enameled, blue and white, which he put upon the market, in his ,trade circulars, as "Strausky's Steel Ware." The oollector classified· them· under Schedule Cof the act of March 3, 1883, as manufactures of steel, etc. ,(paragraph 216;) and assessed duties

CARPENTER STRAW-SEWING MACH. CO. V. SEA.RLE.

809

thereon at 45 per centum ad valorem. The importers protested and brought suit claiming the merchandise to be dutiable at 3 cents per pound as "hollow ware," under the, same schedule and act, (paragraph 201.) The testimony of wholesale dealers was to the effect that, in the trade, the term "hollow ware" was restricted to cast-iron utensils, and did not cover the articles in suit. At the close of the testimony, Asst. U. S. Atty. Henry C. Platt moved for a direction of a verdict for the defendant on the following grounds: (1) That congress had defined the tariff meaning of the term"hollow ware," in the first act in which the words had been used, viz., the act of March 2, 1861, where it was associated (paragraph 44) solely with castings of iron; and in the act of June 30, 1864, (paragraph 352;) the same association was made of hollow ware with cast-iron articles exclusively. (2) That the evidence established the fact that the trade meaninK of the term corresponded with the congressional definition. (3) That the rulings of the treasury department had always been in conformity with such interpretation of the term. W. Wickham. Smith; for plaintiffs. Edward MitcheU, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty_, for defendant.
LACOMBE, Circuit' Judge, (orally.) Upon examination of the prior acts, I'llxn satisfied that congress was of the understanding that "hollow ware" meant vessels of tbis general kind,which we have here, made of cast iron. For the reason, therefore, that there seems to have been a to the words "hollow ware," and embodied congressional meaning in statutes before the passage, of the act of 1883, I assume that congress intended to use the words with the same meaning in the later act that it did in the prior act. Verdict directed in favor of the defendant.

OARPENTER STRAW-SEWING MACH.

Co.

17. SEARLE

et oZ.,

(OftrC'lllU Oourt, So D. New York. November 15, 1892.)

L

PATENTS FOB INVENTIONS-REISSUE-NEW ELEMBNT-STBAW-BIUlD SEWING MA.CHINE.

Reissued letters patent No. 10,600, granted May 26, 1885, to the Carpenter StrawSeWing Machine Company, as assignee, of Mary P. C. Hooper, upon original letters patent dated January 4, 1876, for improvements in straw-braid seWing machines, are void as to the amended fifth claim, wherein a new element, viz., a lip, is added. to the combination claimed. For a reissue to be valid as covering" the same invention" as that in the original, within the meaning of Rev. St. § 4916, the ,patentee must have described aud intended to secure in the original the invention of the reissue.

So

SAME-REISSUE- WHAT CONSTITUTES "THE SA.ME INVENTION."

8.

SAME-BnoADENING OF CLAIM-LACHES.

Wllere a claim in reissued letters patent covers a combination to which a new element has been added, it is in legal contemplation "broadened," and is invalid whell it covers machines used for lOng yeara by innocent parties, without infringe.