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Islands in Alaska. The objections urged, needs of the Indians and the object to be atagainst the trap are, first, that it is within a reservation lawfully established for the use of the Metlakahtla and other Indians, and, second, that it is an unauthorized obstruction to the navigable capacity of waters of the United States. A decree was entered granting the relief sought and this was affirmed by the Circuit Court of Appeals. 240 Fed. 274, 153 C. C. A. 200.

[1] That Congress had power to make the reservation inclusive of the adjacent waters and submerged land as well as the upland needs little more than statement. All were the property of the United States and within a district where the entire dominion and sovereignty rested in the United States and over which Congress had complete legislative The Annette Islands are a group of small authority. National Bank v. County of Yankislands in southeastern Alaska. During the ton, 101 U. S. 129, 133, 25 L. Ed. 1046; Shivesummer of 1887 some 800 Metlakahtla Indi-ly v. Bowlby, 152 *U. S. 1, 47-48, 58, 14 Sup. ans emigrated from British Columbia and Ct. 548, 38 L. Ed. 331; United States v. Wisettled on one of these islands. The emigra-nans, 198 U. S. 371, 383, 25 Sup. Ct. 662, 49 tion and settlement were not only acquiesced L. Ed. 1089. The reservation was not in the in but encouraged by executive and administrative officers of the United States,' and subsequently were sanctioned by Congress through the enactment of section 15 of the Act of March 3, 1891, c. 561, 26 Stat. 1101 (Comp. St. 1916, § 5096a). That section reads as follows:

"That until otherwise provided by law the body of lands known as Annette Islands, situated in Alexander Archipelago in southeastern Alaska, on the north side of Dixon's entrance, be, and the same is hereby, set apart as a reservation for the use of the Metlakahtla Indians, and those people known as Metlakahtlans who have recently emigrated from British Columbia to Alaska, and such other Alaskan natives as may join them, to be held and used by them in common, under such rules and regulations, and subject to such restrictions, as may [be] prescribed from time to time by the Secretary of the Interior."

The fish trap was erected in 1916 without the consent of the Indians or the Secretary of the Interior. It is a formidable structure consisting of heavy piling and wire webbing, is located in water of considerable depth approximately 600 feet from the high tide line of the island on which the Indians settled, is intended to catch about 600,000 salmon in a single season, and its operation will tend materially to reduce the natural supply of fish

accessible to the Indians.

The principal question for decision is whether the reservation created by the Act of 1891 embraces only the upland of the islands or includes as well the adjacent waters and submerged land. The question is one of construction of determining what Congress intended by the words "the body of lands known as Annette Islands."

As an appreciation of the circumstances in which words are used usually is conducive and at times is essential to a right understanding of them, it is important, in approaching a solution of the question stated, to have in mind the circumstances in which the reservation was created-the power of Congress in the premises, the location and character of the islands, the situation and

1 House Ex. Docs. 50th Cong. 1st Sess. vol. 10, p. 64, vol. 13, p. 31; Sen. Mis. Doc. No. 144, 53d Cong. 2d Sess.; Sen. Doc. No. 275, 55th Cong. 2d Sess.

nature of a private grant, but simply a setting apart, “until otherwise provided by law," of designated public property for a recognized public purpose--that of safe-guarding and advancing a dependent Indian people dwelling within the United States. See United States v. Kagama, 118 U. S. 375, 379, et seq., 6 Sup. Ct. 1109, 30 L. Ed. 228; United States v. Rickert, 188 U. S. 432, 437, 23 Sup. Ct. 478, 47 L. Ed. 532.

[2] The islands are in the interior of the Alexander Archipelago and separated from other islands by well-known bodies of water. Before the Metlakahtla settlement they were wild and uninhabited. While bearing a fair supply of timber, only a small portion of the upland is arable, more than three-fourths consisting of mountains and rocks. Salmon and other fish in large numbers frequent and pass through the waters adjacent to the shore and the opportunity thus afforded for securing fish for local consumption and for salting, curing, canning and sale gives to the islands a value for settlement and inhabitance which otherwise they would not have.

The purpose of the Metlakahtlans in going to the islands was to establish an Indian colony which would be self-sustaining and reasonably free from the obstacles which attend the advancement of a primitive people. They were largely fishermen and hunters, accustomed to live from the returns of those vocations, and looked upon the islands as a suitable location for their colony, because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development.

After their settlement and before the reservation was created, the Indians, under the guidance of a noted missionary, adopted a form of self-government suited to their needs; established for themselves a village with substantial dwellings, schoolhouses and the like, and constructed and installed an extensive establishment where they canned salmon for the market.2

House Ex. Docs. 50th Cong. 2d Sess. vol. 10, p. cii; House Mis. Docs. 52d Cong. 1st Sess. vol. 50, part 9, pp. 27-29, 188.

The purpose of creating the reservation was to encourage, assist and protect the Indians in their effort to train themselves to habits of industry, become self-sustaining and advance to the ways of civilized life. True, the Metlakahtlans were foreign born, but the action of Congress has made that immaterial

here.

by the United States in any torpedo constructed
for any person or other governments, and would
not exhibit such device, the United States could
restrain exhibition of a balanced turbine torpedo,
whether or not patentable or within the prior
art, or known to defendant, plans for which the
"furnish"
government furnished defendant;
meaning to supply, while "invent" means to cre-
[Ed. Note.-For other definitions, see Words
and Phrases, First and Second Series, Furnish.]
2. UNITED STATES 58-CONTRACTS-CON-
STRUCTION-EXHIBITION OF TORPEDO.

ate.

Where defendant, contracting to manufac not to exhibit any device for which the design ture torpedoes for the United States, engaged was furnished to it by the United States, the latter could restrain it from exhibiting a decommunicated or suggested verbally, and then by vice incorporated in a torpedo which was first letter, unaccompanied by blueprints of design. 3. INJUNCTION 189 RELIEF - RESTRAINING EXHIBITION OF TORPEDO VIOLATION OF GOVERNMENT CONTRACT. restrain its contractor for the manufacture of In injunction suit by the United States to torpedoes from exhibiting devices furnished by the United States, decree should not include devices not used in the existing torpedo, where the contractor does not display disposition to violate its trust, but the exclusion should be without prejudice to the government's right to obtain injunction against disclosure on proof of intention

The circumstances which we have recited shed much light on what Congress intended by "the body of lands known as Annette Islands." The Indians could not sustain themselves from the use of the upland alone. The use of the adjacent fishing grounds was equally essential. Without this the colony could not prosper in that location. The Indians naturally looked on the fishing grounds as part of the islands and proceeded on that theory in soliciting the reservation. They had done much for themselves and were striving to do more. Evidently Congress intended to conform its action to their situation and needs. It did not reserve merely the site of their village, or the island on which they were dwelling, but the whole of what is known as Annette Islands, and referred to it as a single body of lands. This, as we think, shows that the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland-in other words, as descriptive of the area comprising the islands. [3] This conclusion has support in the gen-W. Bliss Company. From a decree of the eral rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indi

ans.

to use them.

Mr. Chief Justice White dissenting.

Appeal from the United States Circuit
Court of Appeals for the Second Circuit.
Suit by the United States against the E.

District Court for plaintiff, defendant appealed to the Circuit Court of Appeals, which amended and affirmed (139 C. C. A. 633, 224 Fed. 325; 143 C. C. A. 496, 229 376), and defendant appeals. Af

firmed.

Messrs. George W. Field and Arthur C. Fraser, both of New York City, for appellant.

Fed. Choate v. Trapp, 224 U. S. 665, 675, 32 Sup. Ct. 565, 56 L. Ed. 941, and cases cited. And it has further support in the facts that, save for the de*fendant's conduct in 1916, the statute from the time of its enactment has been treated, as stated in the opinion of the Alaska court, by the Indians and the public as reserving the adjacent fishing grounds as well as the upland, and that in regulations prescribed by the Secretary of the Interior onion of the Court.

Mr. G. Carroll Todd, Asst. Atty. Gen., for appellee.

Mr. Justice McKENNA delivered the opin

February 9, 1915, the Indians are recognized Appeal from a decree of the United States as the only persons to whom permits may be Circuit Court of Appeals (United States v. issued for erecting salmon traps at these is- E. W. Bliss Co., 224 Fed. 325, 139 C. C. A. lands. 633) amending and affirming a decree of the

These views are decisive of the suit and District Court for the Eastern District of sustain the decree below.

Decree affirmed.

(248 U. S. 37)

E. W. BLISS CO. v. UNITED STATES. (Argued Nov. 20 and 21, 1918. Decided Dec. 9, 1918.) No. 15.

1. UNITED STATES ~70(1)—CONTRACTS-CONSTRUCTION "FURNISH"-"INVENT."

Where a contract between the United States and defendant for manufacture of torpedoes provided that defendant would not make use of any device the design for which was furnished to it

New York entered in a suit brought by the United States against appellant (herein referred to as the Bliss Company) restraining the latter from exhibiting or communicating the construction and operation of a torpedo known as the Bliss-Leavitt torpedo.

The controversy turns upon the construction and application of certain clauses of the contracts between the Bliss Company and the United States and is not, we think, in broad compass. In support of its contention in the main the United States has the sanction of the two courts.

The development, construction and opera

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

covers the balanced turbine and *certain other features, and it is manifest that whether it should be granted depends particularly upon a provision of the contract which prohibits the exhibition of the torpedo or its per

tion of the torpedo gave animation and attraction to the argument, but it is enough to say that its method of propulsion is the balanced turbine method, so called, that is, turbines revolving in opposite directions. The United States asserts that to this meth-formance to any person whatsoever or to od of propulsion the excellence and efficacy of the torpedo is due and that it was the conception of the United States; that it was the result of much experimentation on the part of its engineers and those of the Bliss Company and the expenditure of substantial sums of money by the government, and that because of the superior speed, range and power of this new weapon, other nations have been eager to learn the secrets of its construction.

The Bliss Company denies these assertions, opposes them, besides, by the contentions that the balancing of rotary bodies analogous to turbines rotating in opposite directions was a matter of common knowledge long prior to any transactions with the United States and that the *torpedoes constructed by it under its contract contained balanced turbines, so called, of its own design and property; or, to quote counsel:

"The torpedo is the product of the assiduity and genius of the defendant's officers and engineers, and not that of the government."

And, further, that it purchased from Lieutenant Davison, with full knowledge of the United States, all of his rights to foreign patents, and to this patent, it is said, the United States assigns a special excellence. This is the issue in outline. The Bliss Company asserts the right to have other customers than the United States and to seek other markets, and not subject to restriction by the United States. The United States claims an exclusive service and even concealment from all others except as it may concede it. The resolution of the contentions is in the contract of the parties.

Those transactions date to 1905 and are exhibited in three contracts, one of November 22, 1905, one of June 12, 1912, and an intervening one dated July 16, 1909. In the 1905 contract there was a provision, which it is admitted was embodied in all subsequent contracts. Disputes arose as to the meaning of the provision, the rights and restraints under it, and the Bliss Company brought them to litigation by expressing its desire to negotiate with Messrs. Whitehead & Company for the right to manufacture the torpedo in foreign countries. The Bureau of Ordnance objected, and on May 9, 1913, the company addressed the Secretary of Navy as follows:

"As a means to this end we notify you hereby that it is our intention to communicate the conplete construction and operation of the existing type of Bliss-Leavitt torpedo, and to make a demonstration of the operation of said torpedo, to a representative of Messrs. Whitehead & Company on or immediately after June 1, 1913." [1] To restrain the threatened action this suit was brought. The prayer of the bill

any other government, or its representatives, than that of the United States. That provision is that the Bliss Company "will not make use of any device the design for which is furnished to it" by the United States "in any torpedo constructed or to be constructed for any person or persons, firms, corporations, or others, or for other governments than" the United States and "will not exhibit such device or in any way describe it to or give any information in regard to it to any person * or to other governments, or their representatives" or exhibit its performance "either in shop or in service tests." A violation of the contract incurs its cancellation and releases the United States from all claims or demands under it. It is, however, provided that no design shall be considered as coming within the provisions unless the United States communicates in writing to the Bliss Company that it (the United States) thinks it is embraced by the provision. It is disputed whether the

1" 'Nineteenth. It is hereby expressly further stipfirst part will not make use of any device the deulated, covenanted and agreed, that the party of the sign for which is furnished to it by the party of the second part in any torpedo constructed or to be constructed for any person or persons, firms, corporations or others, or for other governments than the party of the second part hereto; that the party of the first part will not exhibit such device or in any way describe it to, or give any information in regard to it to any person or persons, firms, corporations, or others, or to other governments, or their representatives, than the party of the second

part hereto; that the party of the first part will not exhibit the performance of any torpedo containing such device either in shop or in service tests, to any person or persons, firms, corporations or others, or to other governments, or their representatives, than the party of the second part hereto:

"'Provided furthermore, that no device or design of this clause unless the party of the second part shall be considered as coming within the provisions shall state to the party of the first part in writing, at the time when the said device or design is itself conveyed to the party of the first part by written communication from the party of the second part, that the party of the second part considers that the said device or design is embraced within the provisions of this clause.'"

"In the contract of June 12, 1912, the foregoing clause became clause Twentieth. The 1912 contract

contained, however, in the second clause, the following new matter, which (save that part enclosed by brackets) had not been included in previous con

tracts:

'[Second. The manufacture of said torpedoes]. (the word "torpedoes" as used throughout this contract being intended to include everything covered by the drawings, plans and specifications above referred to) [shall conform in all respects to and with said drawings, plans and specifications] including duly authorized changes therein, but said drawings, plans and specifications are not hereto annexed or made a part hereof. They contain information of a confidential character that cannot be made public without detriment to the government's and the ontractor's interests, and they are

condition of the pro*vision was performed, | nished," would be open to dispute and the but both the lower courts have found that it was, and we concur in their judgment. The condition of the provision, then, having been performed, we come to its meaning, the Bliss Company contending that the device must be of the invention of the United States, and the latter contending that it need only be "furnished" by the United States.

The Bliss Company's contention in its detail is somewhat difficult to state concisely. It rests as much in implication as in expression. It is said that the restrictive clause "applies only to a 'device the design for which is furnished by the government'" and "expressly and clearly excludes ideas, methods or principles." And it is further urged that

"To furnish a design, it is necessary to furnish something concrete. A device is also something concrete. One cannot accept an idea."

To support these declarations legal and other definitions are adduced. One is selected from Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681, which explains a device to be "a thing devised or formed by design, a contrivance, an invention." It is hence asserted that the United States did not comply with these definitional requirements-indeed, from the state of the art, could not; and therefore could not impose secrecy upon the Bliss Company.

The tangibility of the definitions and the arguments based upon them are not very clear nor what purpose they tend to establish. The company asserts a right to employ the principle of propulsion and this principle it | asserts to be to quote counsel-"the balancing of rotary bodies analogous to turbines rotating in opposite directions and of equal speeds for the purpose of eliminating gyroscopic effect," and that it was "long prior to 1906 [the first contract was made in 1905] a matter of common knowledge and known to the defendant" (the company); and again: "The balanced turbine principle was public property and not the property of the government. It was a matter of public knowledge and

not a secret.'

charge of being anticipated, already in existence among the things available to the company as "public property and not the property of the government"-"a matter of public knowledge and not a secret." And the govern*ment could not even fortify itself by the presumptions of a patent. To have done so would have been to break the seal of se crecy and relieve the company from the obligations imposed by the contract. To this contention the Bliss Company is driven to get rid of the Davison patent, the design for which was furnished the company by the United States. Counsel say:

"Assuming that the particular design of a balanced turbine produced by Davison was a secret, it lost every attribute of the secret upon the issuance by the United States government of letters patent to Davison.'

And further:

"The issuance of this patent, therefore, begovernment through the same department by came an act of the Navy Department. Thus the which it entered into the several contracts with the defendant [the company], caused the secret of the balanced turbine to be laid open to the public."

And, besides, it is said that the government "tacitly permitted Davison, one of its officers and subject to its discipline, to assign" to the company "foreign patents for the device in issue"; and that therefore "it cannot now successfully contend that its design is within the restrictive clause." But this gives an exaggerated effect of publicity to a patent and cannot dispense with the explicit obligation of the restrictive clause. Indeed, we may repeat, Of what avail was the restrictive clause to the government under the contentions of the company? It was assured of nothing but opposition and litigation. We may cite in further illustration of this that the Bliss Company asserts that the Davison device was without novelty in the field of "opposite revolving turbines" (another name for a balanced turbine) and that all he did was to take a "design of unbalanced turbine shown" in a prior patent "and reverse one of the turbine wheels with the incidental and necessary change in the of this gearing is what occupied Lieutenant gearing." The assertion is that "the design Davison's time and thought." We may say that we concur with the lower courts and think the patent is not so limited. The Bliss Company thought well enough of it to buy its foreign rights.

Therefore, as we have said, the contention is that it was not within the prohibition of the contracts. Immediately it may be asked: This being the condition, of what value was the restrictive clause to the government? Surely the government sought to secure something valuable and practical, and yet it was apparently only the promise of The several contentions of the company words never to have effective realization. are but fragments of the broader one that Instead of security the government got a controversy. Anything it might offer or sug-available to the company practical devices there were in the world's knowledge and gest or, to use the word of the contract, "fur

to be treated as confidential by the parties of this contract, it being understood, however, that nothing in this clause shall be construed as depriving the

party of the first part of the right to make and

sell such torpedoes to any other party or government whatsoever, except as limited by clause twentieth of this contract.'"

as well as principles of operation which precluded a demand of secrecy by the government and which left the company free to use. or exhibit or sell to anybody torpedoes embodying them, the final and dominant contention being that the government's reservation was only of inventions, inventions, however,

contention already referred to that a device or design must be something concrete or, it is now said, if not that, “it at least imports something as to dimensions, size, shape, weight, etc., from which a device could be. constructed." The objection *is hypercritical and we are somewhat surprised at it. There was no uncertainty in the government's demand and no misunderstanding of it. There were discussions concerning the practical means of using it, and it was testified that "the sole question practically reducing itself to whether or not they had sufficient space to apply this design or principle." And the design was subsequently worked out by the employés of the company. The objection was rested on other grounds, and it was rightfully dealt with by the Circuit Court of Appeals.

undisclosed, patentable but not patented. | Regulation of Air, that written notice was Yet the word of the contract is "furnished," not given the company as required by the not invented, and the words are of differ- restrictive clause. The assertion is that ent significance. To invent means to create; what was done by the government was *nothto furnish means to supply. And the differ- ing but suggestions, first verbal, and then ence was too important, too pertinent to the by letter, but not accompanied by "blueprints purpose to have been overlooked-indeed, of design." 2 The objection is based on the must have been deliberately contemplated to achieve the object of the parties. The government in its situation, considering the use of torpedoes and the uncertainty against whom to be used, would want to avail itself of the whole universe of things then existing or that might be brought into existence, in whatever way or combination it could. It is easy to believe that an arrangement of old devices might have value. And secrecy was an especial object, as far as it could be maintained and for such length of time as it could be maintained. The fact and the time might in instances be critical and determinative of a decisive result. The government considered the provision important to insert in the contract of 1905 and to repeat in every subsequent contract, to and including that of 1912, and to disregard the plea of the company for some relaxation of it to accommodate the company's interests. There was some relaxation in 1912 and 1913, but the confidential relation of the parties was emphasized as we have seen. *This was the simple situation. It is free from the tangle and perplexities of the company's contentions. It gives use to the restrictive clause, directness of right and remedy, not dependent upon explorations into the prior art or the delays and termination of lawsuits. These observations apply to other parts of the torpedo as well as to the balanced turbine. The remarks of the Circuit Court of Appeals are pertinent. The court said:

"Throughout the entire record, in the contracts, correspondence and dealings of the parties, the importance of secrecy is every where manifest. The nature of the services rendered was such that secrecy might almost be implied. It is difficult to imagine a nation giving to one of its citizens contracts to manufacture implements necessary to the national defense and permitting that citizen to disclose the construction of such implement or sell it to another nation. The very nature of the service makes the construction urged by the defendant untenable. We are of the opinion, therefore, that the injunction should include all designs, drawings, plans and specifications used by the defendant in making the Bliss-Leavitt torpedo for the government which were approved by the Ordnance Bureau, notice of which was given to the Bliss Company pursuant to the provisions of Clauses 19 and 20 of the contracts in question."

The court hence directed the amendment of the decree of the District Court, "adding such a provision."

[2] A rehearing was asked of the case, 229 Fed. 376, 143 C. C. A. 496. It was denied as to the balanced turbine and granted as to the other devices, that is, Double Regulation of Air, Ball Bearings for Gyroscope, and Inside Superheater. To the inclusion of these in the decree it is objected, as to the Double

[3] The same objection is not made as to the superheater and the ball bearings. It is said of them that they are not used in the existing type of torpedo. As this is conced-ed by the government and as we do not agree with its assertion that the company "displays a disposition to violate its trust whenever it seems advantageous to do so," we think the decree should not include the devices. In other words, it should be modified

Bureau of Ordnance, Navy Department. 25698/102-(G)-0. January 18, 1913. improvement shown in the dynamometer tests of Sirs: 1. The Bureau is pleased to note the decided

the Mark VII torpedo by the use of double regulating valves.

2. This plan or idea of double regulation was first

submitted to the Bureau by a letter from Lieut. E. Frederick, then Assistant Inspector of Ordnance at ed and filed in this office on or about March 15, your works, dated March 9, 1911, which was receiv1911, and the value of the invention was successfully established by the actual tests at the Naval Torpedo Station, Newport, R. I.

3. The Bliss Company had been furnished ver

This was also

bally with the idea and the fact that its value had
been established by actual trials.
furnished the E. W. Bliss Company by the Bureau's
letter No. 25698/92 (G) of January 4, 1913.

4. In view of the above the Bureau requests that

you will note for record that the double regulating principle has been submitted by the Bureau, and that this principle of any device embodying the

same falls under the provisions of Clause 20 of the contracts now existing.

5. While the Bureau has no actual blue prints of design it has on record cards and certain data obtained by experiments at the Torpedo Station which the Bureau will be pleased to furnish the E. W. Bliss Company for their information if they so desire and will request it.

6. The Bureau again desires to express its pleasure in noting the improvement in the dynamometer tests due to the double regulation and the change in angle spray which was introduced at the suggestion of the Bureau's inspectors at your works.

Respectfully, N. C. Twining, Chief of Bureau. E. W. Bliss Co., Brooklyn, N. Y.

(Through Inspector of Ordnance.)

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