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"It is evident that in many cases it would be quite difficult to prove the exact amount of damages which the proprietor of a copyrighted dralawful production by another, and yet it is also matic composition suffered by reason of its un

the court's conception of what is just in the particular case, considering the nature of the copyright, the circumstances of the infringement and the like, is made the measure of the damages to be paid, but with the ex-evident that the statute seeks to provide a remepress qualification that in every case the assessment must be within the prescribed limitations, that is to say, neither more than the maximum nor less than the minimum. Within these limitations the court's discretion and sense of justice are controlling, but it has no discretion when proceeding under this provision to go outside of them.

Apart from the natural import of its words, the history of the provision makes strongly for this view. An early statute required the infringer of a copyright in a dramatic composition to pay such damages "as to the court shall appear to be just," but "not less than" a prescribed amount. Act Aug. 18, 1856, c. 169, 11 Stat. 138; Act July 8, 1870, c. 230, § 101, 16 Stat. 214. This statute became section 4966 of the Revised Statutes. A later statute provided that the recovery for infringing a copyright in an engraving should not be less than $250 nor more than $10,000, and for infringing a copyright in a photograph of an object other than a work of art should not be less than $100 nor more than $5,000. Act March 2, 1895, c. 194, 28 Stat. 965. In 1909, when the copyright statutes were revised, these provisions, and others without present bearing, were brought together in the "in lieu" provision now under consideration. True, they were broadened so as to include other copyrights and the limitations were changed in amount, but the principle on which they proceeded-that of committing the amount of damages to be recovered to the court's discretion and sense of justice, subject to prescribed limitations-was retained. The new provision, like one of the old, says the damages shall be such "as to the court shall appear to be just." Like both the old, it prescribes a minimum limitation and, like one, a maximum limitation.

In Brady v. Daly, 175 U. S. 148, 20 Sup. Ct. 62, 44 L. Ed. 100, which was an action to recover for the infringement of a copyright in a dramatic composition, the first of the earlier provisions-that in section 4966, Rev. Stat. was much considered. The trial court was of opinion that, while the damages were to be such as appeared to it to be just, it could not go below the prescribed minimum; and it made the assessment accordingly. In this court it was contended that in this view *the provision was penal and the action was one to recover a penalty. But the contention was overruled and the judgment affirmed, the court saying (175 U. S. 154, 157, 20 Sup. Ct. 64, 65 [44 L. Ed. 109]):

dy for such a wrong and to grant to the proprietor the right to recover the damages which he has sustained therefrom.

"The idea of the punishment of the wrongdoer is not so much suggested by the language used in the statute as is a desire to provide for the recovery by the proprietor of full compensation from the wrongdoer for the damages such proprietor has sustained from the wrongful act of the latter. In the face of the difficulty of determining the amount of such damages in all cases, the statute provides a minimum sum for a recovery in any case, leaving it open for a larger recovery upon proof of greater damage in those cases where such proof can be made. The statute itself does not speak of punishment or penalties, but refers entirely to damages suffered by the wrongful act. The person wrongfully performing or representing a dramatic composition is, in the words of the statute, 'liable for damages therefor.' This means all the damages that are the direct result of his wrongful act. The further provision in the statute, that those damages shall be at least a certain the character of the statute and render it a sum named in the statute itself, does not change penal instead of a remedial one.

"Although punishment, in a certain and very limited sense, may be the result of the statute before us so far as the wrongdoer is concerned, yet we think it clear such is not its chief purpose, which is the award of damages to the party who had sustained them, and the minimum *amount appears to us to have been fixed because of the inherent difficulty of always proving by satisfactory evidence what the amount is which has been actually sustained."

It was after the minimum limitation was thus recognized as of controlling force in the assessment of the damages that the terms of the provision then under consideration were substantially repeated in the “in lieu" provision of the revised act. This hardly would have been done had it not been intended that the limitation should be as controlling there as in the earlier statute. That it was intended to be thus controlling is shown by the reports of the committees on whose recommendation the act was passed. House Report No. 2222 and Senate Report No. 1108, 60th Cong., 2d Sess.

In our opinion the District Court erred in awarding less than $250 damages in each of the seven cases, and the Circuit Court of Appeals erred in holding there was only one case instead of seven.

Decree reversed.

Mr. Justice DAY did not participate in the consideration or decision of this case.


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On Writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit.

Suit by Robert F. Werk and others, co

clusively of long hair derived from animals' tails and manes, which hair is soft and pliable; the warp-threads exceeding the weft-threads in number per square inch, and the weft-threads being thicker than the warp-threads."

The District Court dismissed the bill on the ground of noninfringement. 221 Fed. 644. The Circuit Court of Appeals, without discussing this question, affirmed the decree upon the ground that the patent disclosed no such novel information to the oil-pressing

art as warranted a grant of the patent mo-
nopoly. 231 Fed. 121, 145 C. C. A. 309. At
the conclusion of its opinion the court stated
(231 Fed. 125, 145 C. C. A. 309) that, in view
of the fact that certain references quoted
were not given in evidence, the sending down
of the mandate would be deferred for a time
to permit of an application for reargument
or other form of relief to meet such refer-
ences. Thereupon a petition for a rehearing
was filed in behalf of appellants, which,
while not disputing the accuracy of the re-
sults disclosed by the court's investigation,
insisted that there was error in giving ef-
fect to the anticipatory matter thus disclos-
ed, and in "failing to give controlling con-

partners as Robert F. Werk & Co., against sideration to the fact that both of the two claims declared upon are laid not only to a particular woven structure of an oil-press mat, but also to an oil-press mat of such particular woven structure, when its threads are composed of animal hair." The rehearing was refused, after which the present writ of certiorari was allowed. 242 U. S.

F. Thomas Parker and another, copartners
Decree for
as the F. T. Parker Company.
defendants (221 Fed. 644) was affirmed by
the Circuit Court of Appeals (231 Fed. 121,
145 C. C. A. 309), and complainants bring
certiorari. Affirmed.

Mr. T. Hart Anderson, of New York City, 645, 37 Sup. Ct. 239, 61 L. Ed. 543. for petitioners.

Messrs. John Weaver and Frederick S. Drake, both of Philadelphia, Pa., for respondents.

In the process of obtaining oil from cotton seed, the *seeds, having been cleaned and freed from lint, are hulled and chopped up, the meats being separated from the hulls; the meats are passed through a crusher, next

Mr. Justice PITNEY delivered the opinion cooked in water, and after this are spread

of the Court.

Petitioners sued respondents in the District Court of the United States for the Eastern District of Pennsylvania for infringement of two divisional patents, Nos. 758,574 and 758,575, granted April 26, 1904, to Robert F. Werk. Defendants answered denying patentable novelty, and also denying infringement. The patents relate to an oilpress mat or cloth for use in the extraction

of cotton-seed oil. The claim in issue under the former patent was for:

*"An oil-press mat or cloth made entirely of long animal hair and consisting of warp and weft threads, said weft-threads being composed exclusively of soft, pliable hair and the warpthreads greatly exceeding the weft-threads in number per square inch."

And in the second patent:

"An oil-press mat or cloth consisting of warpthreads and weft-threads, each composed ex

upon an oil-press mat or cloth, the ends of which are folded over to cover the upper surface of the cooked meats. The mat with its inclosed mass of meats is then placed in a press and subjected to a pressure of about 4,000 pounds, which has the effect of expressing the oil through the mat as through

a strainer.

One of the patents declares, and the evidence at the hearing indicated, that the highest grade of mat previously in general use was made of camel's hair, and that this was objectionable because of its tendency to pack and felt together when in use to such an extent as to hinder the free flow of the oil, and also because of its want of durability. The use of long animal hair, specifically horse hair, obviated this difficulty to such an extent as materially to reduce the percentage of oil wasted, as well as the cost of the mat in proportion to the product. Defendants accomplished like results with mats woven from human hair.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digesta and Indexes

The Circuit Court of Appeals, while finding that the change from camel's hair to horse-hair mats was sufficient to constitute

(249 U. S. 178)


invention in the art, if this use of horse-hair (Argued Jan. 21, 1919. Decided March 3, 1919.)

mats was first disclosed by Werk, nevertheless found, from an examination of standard works, that the patentee's use was but a revival of an old and well-recognized use of such mats in the art of oil extraction. Reference was made to the British Encyclopedia, 9th edition, 1884, the Standard Dictionary of 1894, and a multitude of other publications long antedating the application for the patent.

It is not questioned that these references abundantly showed that the use of hair cloth, and especially horse-hair cloth, in the making of oil-press mats or cloths, was well known in the art long before the patents in suit.

[1] Nor is it questioned-indeed, we deem it clear, beyond *question-that the court was justified in taking judicial notice of facts that appeared so abundantly from standard

works accessible in every considerable library. Brown v. Piper, 91 U. S. 37, 42, 23 L. Ed. 200; Terhune v. Phillips, 99 U. S. 592, 25 L. Ed. 293.

[2] The burden of petitioner's argument in this court, as in the application for a rehearing in the circuit court of appeals, is that there was nothing in these publications to show that the horse-hair cloth so familiar in the art embodied the "structural characteristics" of the oil-press mats of the patents in suit, referring to the peculiar mode of weaving described in the claims. But at the hearing it was clearly proved, and was conceded to be beyond controversy, that the patents involved no claim of an improvement in the art of weaving, but only the application of that art and a combination of threads of a certain type and character in order to produce a particular result. And this, in our opinion, goes no further than a mere mechanical adaptation of familiar materials and methods, not rising to the dignity of invention. Atlantic Works v. Brady, 107 U. S. 192, 200, 2 Sup. Ct. 225, 27 L. Ed. 438; Penn. R. R. v. Locomotive Truck Co., 110 U. S. 490, 494, 4 Sup. Ct. 220, 28 L. Ed. 222; Hollister v. Benedict Mfg. Co., 113 U. S. 59, 71, 73, 5 Sup. Ct. 717, 28 L. Ed. 901; Aron v. Manhattan Ry. Co., 132 U. S. 84, 90, 10 Sup. Ct. 24, 33 L. Ed. 272; McClain v. Ortmayer, 141 U. S. 419, 426, 429, 12 Sup. Ct. 76, 35 L. Ed. 800; Duer v. Corbin Cabinet Lock Co., 149 U. S. 216, 222, 13 Sup. Ct. 850, 37 L. Ed. 707; Wright v. Yuengling, 155 U. S. 47, 54, 15 Sup. Ct. 1, 39 L. Ed. 64; Olin v. Timken, 155 U. S. 141, 155, 15 Sup. Ct. 49, 39 L. Ed. 100; Market Street Ry. Co. v. Rowley, 155 U. S. 621, 629, 15 Sup. Ct. 224, 39 L. Ed. 284.

Decree affirmed.

No. 167.


which Act May 27, 1908, c. 199, § 3, declares The enrollment record of Creek citizenship, shall be "conclusive evidence as to the age" of the citizen, is conclusive only so far as it purports to state age; and giving in years, only, the ages of six members of a family under the same date of enrollment, is not conclusive that it was their birthday; and does not exclude evidence of how much more, less than a year, was the age of one of them.

On Writ of Certiorari to the Supreme Court of the State of Oklahoma.

Action by Thomas Gilcrease against G. R. McCullough and others. Judgment for defendants was affirmed by the Supreme Court of Oklahoma (162 Pac. 178), and plaintiff

brings certiorari. Affirmed.

Mr. A. J. Biddison, of Tulsa, Okl., for petitioner.

Mr. James B. Diggs, of Tulsa, Okl., for respondents.

Mr. Justice BRANDEIS delivered the opinion of the Court.

Thomas Gilcrease, a Creek Indian of one

eighth blood, received under date of December 15, 1902, an allotment of surplus land under Act of Congress March 1, 1901, c. 676 (31 Stat. 861), as amended by Act of June 30, 1902, c. 1323 (32 Stat. 500). On February 8,. 1911, his twenty-first birthday, he executed to McCullough and Martin an oil and gas lease thereof. Later he brought suit in a state court of Oklahoma to set it aside insisting that, under the applicable enrollment record of Creek citizenship, he must be assumed to have been under age at the time the lease was executed, although he had in fact attained his majority. The trial court entered Judgment for the defendants which was affirmed by the Supreme Court of the state (162 Pac. 178), and a rehearing was denied, January 9, 1917. The case comes here on writ of certiorari. 243 U. S. 653, 37 Sup. Ct. 480, 61 L. Ed. 948.

The only substantial question submitted is this: Did the entry concerning Gilcrease's age made in the enrollment record of Creek citizenship preclude defendant from showing that he was actually of age when the lease was executed? The decision of that question depends wholly upon the construction to be given section 3 of the Act of May 27, 1908, c. 199 (35 Stat. 312, 313), as applied to the record.

Section 3 provides:

"That the rolls of citizenship and of freedmen of the Five Civilized Tribes approved by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


the Secretary of the Interior shall be conclusive [ Civilized Tribes is stated in the enrollment evidence as to the quantum of Indian blood of record to be a certain number of years old any enrolled citizen or freedman of said tribes and the day of his enrollment is stated there and of no other persons to determine questions in, he shall be unable to convey his lands so arising under this act and the enrollment rec- long as the rolls do not show affirmatively ords of the Commissioner to the Five Civilized that he is 21 years old. For this contention Tribes shall hereafter be conclusive evidence as there is no support in the words of the stat to the age of said citizen or freedman." ute; nor is there any in reason. As well might

The enrollment record introduced in evi- it be contended that where the record states dence, so far as material, is as follows:

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*Gilcrease insists that the entry "June 9/99," near the lower right-hand corner of the enrollment card, signifies that the application for his enrollment was made on June 9, 1899; that in giving his age as "9," the roll declared him to be exactly 9 years old on June 9, 1899; and that, consequently, in the absence of other evidence to the contrary in the enrollment record, he must be deemed to have been under age on February 8, 1911. But there was no declaration or finding of fact by the Commission that Gilcrease was exactly 9 years old on June 9, 1899. The declaration that a person is 9 years of age signifies, in the absence of conditions requiring exact specification, merely that he has reached or passed the ninth anniversary of his birth and is still less than 10 years old. There was neither a statute nor a regulation of the Commission which required an exact specification of age. Nor did the printed blank used for the enrollment provide a space either for entering the date of applicant's birthday or for entering the number of months and days by which his age exceeded a full year. Furthermore, the enrollment card itself bears positive evidence that it did not purport to represent the applicant as be ing exactly 9 years old on the day of application. For this same card records, in like manner, on the assumed date of application, also the ages of his mother, of three brothers, and a sister. Is the court expected to believe that the Commission found, that the six members of the family were all born on the 9th day of June?

Gilcrease insists, however, that the act makes the enrollment record not merely "conclusive," but the exclusive "evidence as to the age" of the citizen; or, in other words, that Congress has provided, not a rule of evidence, but the following rule of substantive law: Whenever a member of the Five

the number of the applicant's years, but gives only the year and not the day or the month of the application of enrollment, evidence could not be introduced to show that the application was made before December 31st of the year given, or that if no age whatever appeared in the enrollment record the citizen must for 21 years after the date of enrollment be conclusively presumed to be a minor. The enrollment record is, of course, conclusive as to that which it in terms recites or which is necessarily implied from the words and figures used. But there is no indication of an intention on the part of Congress that facts not inconsistent with the recitals of the record shall not be proved, whenever relevant. The roll had already been held to be practically conclusive as to facts, the determination of which was a condition precedent to enrollment. Compare United States v. Wildcat, 244 U. S. 111, 37 Sup. Ct. 561, 61 L. Ed. 1024. The purpose of section 3 of the Act of May 27, 1908, seems to have been simply to make the record conclusive as to age in so far as it purports to state age. The cases in the lower federal courts, the recent decisions in the Supreme Court of Oklahoma, and the great weight of all the authorities support the proposition that, when the age is stated simply in years or whenever the age is not stated definitely by the addition of the months or days, other evidence may be introduced to supplement the record by proving these and thus establish the exact date of birth.1


1 Etchen v. Cheney, 235 Fed. 104, 148 C. C. A. 598;

McDaniel v. Holland, 230 Fed. 945, 145 C. C. A. 139; Cushing v. McWaters (Okl.) 175 Pac. 838; Tyrell v. Jordan (Okl.) 174 Pac. 1074; v. Jordan Shaffer (Okl.) 162 Pac. 758; Heffner v. Harmon (Okl.) 159 Pac. 650. Compare also Hutchison v. Brown (Okl.) 167 Pac. 624, 626; Jackson v. Lair, 48 Okl 269, 150 Pac. 162. For earlier case, contra, see Rice v. Anderson, 39 Okl. 279, 134 Pac. 1120. Compare also Linam v. Beck, 51 Okl. 727, 152 Pac. 344; Henley v. Davis (Okl.) 156 Pac. 337, 338.

The petitioner in his brief sets out a number of letters from the Land Department on the question of whether, under section 3, the date of application is to be considered the date of birth, when date of birth not given. In all the communications where the question is considered it is stated in effect, as

in that of August 24, 1908, from Mr. Leupp, Commissioner of the General Land Office, to the Secretary of the Interior (Land 56330-1908 E. B. H.), that the "application for enrollment shall be construed, for the purposes of the government, as representing the age of the applicant at that time, and that the date of the application shall be held to be the anniversary of the date of birth, except where the records show otherwise." It is always stated that the act

(249 U. S. 63)


Broadway in the city of St. Louis. Withnell, plaintiff in error, is the owner of property assessed, fronting on Broadway, being

(Argued and Submitted Jan. 16, 1919. Decid-five lots in city block No. 2069, five lots in

ed March 3, 1919.)

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NOTICE AND HEARING "LEGISLATIVE ACT." The charter of the city of St. Louis, adopted by vote of the people under authority of the Constitution of Missouri, is in effect a "legislative act," within the principle that, when an assessment is made in accordance with a fixed rule adopted by a legislative act, opportunity to be heard in advance on question of amount and extent of assessment and benefits is not essential to due process.

[Ed. Note.-For other definitions, see Words

city block No. 2608, and unplatted property in city blocks Nos. 2620 and 2621.

The validity of the tax bills was affirmed by the Supreme Court of Missouri. Ruecking Const. Co. v. Withnell, 269 Mo. 546, 191 S. W. 685. The case is here because of alleged violation of the Fourteenth Amendment to the federal Constitution in assessing the lien of these tax bills upon plaintiff in error's property. The assessment was levied in accordance with the charter of the city of St. Louis. An assessment for improving other portions of the street than are here involved,

made under the terms of the St. Louis char

and Phrases, First and Second Series, Legislater, was before this court in Gast Realty Comtive Act.] pany v. Schneider Granite Company, 240 U. S. 55, 36 Sup. Ct. 254, 60 L. Ed. 523. In that case

2. COURTS 399(1)-ERROR TO STATE COURT the assessment was held invalid in part. Aft-QUESTIONS REVIEWABLE.

On error to the state court on the ground that assessment for street improvement violated the Fourteenth Amendment, decision of state court as to manner of laying out district and whether it conformed to charter is conclusive. 8. CONSTITUTIONAL LAW 233-EQUAL PROTECTION DUE PROCESS MENTS-ASSESSMENTS.


Attack on the system authorized by St. Louis City Charter of assessing three-fourths of cost of street improvement on abutting property according to area, ascertained by prescribed method, as denying the protection afforded by the Fourteenth Amendment, can only succeed if it has produced results as to the complaining party's property palpably arbitrary or grossly unequal.

er being remanded to the Supreme Court of Missouri, and a second judgment, the case was again before this court. 245 U. S. 288, 38 Sup. Ct. 125, 62 L. Ed. 292.

The method of making assessments under the charter of the city of St. Louis, as stated in Gast Realty Company v. Schneider Granite Company, supra, is as follows: One-fourth of the total cost is levied upon all the property fronting upon or adjoining the improvement according to frontage and three-fourths according to area ascertained as follows:

"A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter pro*vided, namely: If the property adjoining the

In Error to the Supreme Court of the street to be improved is divided into lots, the State of Missouri.

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district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved. If there is no parallel or converging street on either side of the street improved, the district lines shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located."

In the Gast Realty Company Case the area assessment was held invalid because it assessed a large and disproportionate part of the plaintiff in error's property. The memorandum appended to the opinion shows that the foot-front assessment was not disturbed. And see the subsequent consideration of the matter in Schneider Granite Company v. Gast Realty Company, 245 U. S. 288, 38 Sup. Ct. 125, 62 L. Ed. 292, supra.

[1] In support of the constitutional objection it is contended that the plaintiff in error

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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