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operation of the machine remains the same, form the same function, did not take the infringement is avoided. Brooks v. Fiske, structure without the bounds of the patent, 15 How. 212, 221, 14 L. ed. 665, 669; Union said: Steam-Pump Co. v. Battle Creek Steam- "If, however, such changes of size, form, Pump Co. 43 C. C. A. 560, 104 Fed. 337, 343. or location effect a change in the principle In the latter case Judge Severens, who de or mode of operation such as breaks up the livered the opinion of the court, after rec-relation and co-operation of the parts, this ognizing the doctrine that mere change of results in such a change in the means as the location of parts, if the parts still per- I displaces the conception of the inventor,

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and takes the new structure outside of the patent industriously makes the stationary patent.”

card, substantially as described, an element And see Kokomo Fence Co. v. Kitselman, of the claim.” Of this card the inventor 189 U. S. 8, 47 L. ed. 689, 23 Sup. Ct. Rep. said: 521, in which case it was held that where "Immediately above the stretcher bar B the patent does not embody a primary in- is arranged a stationary card, E, which is vention, but only an improvement on the attached to the ends of the stretcher bar B prior art, and the defendant's machines can by means of thumb-screws. (Not shown in be differentiated, the charge of infringement the drawings.) The points of the teeth of is not sustained.

the card E are close to but do not touch the In the case under consideration the re- surface of the skin, so that the hair and fur spondents have dispensed with the fixed are both straightened as the skin is fed forstretcher bar and have adopted a movable ward. The teeth of the card E hold down one, operated by an entirely different mech- the fine fur, but permit the stiff hairs to anism, capable of accomplishing a much stand up between the teeth, owing to the larger amount of work within a given time. slow forward movement of the skin, which In the circuit court of appeals it was said gives the hairs sufficient time to so adjust to result in a double working capacity and themselves.” product. It does not seem to us to be a He also says: “The card is set back mere transposition or substitution of parts; from the edge of the stretcher bar to a disin the Sutton patent, the stretcher bar being tance a little more than one half of the stationary, there are several mechanisms length of the fur, for the purpose of holding used for operating the movable brushes and the fur and preventing it from moving forthe clipping knives; a different mechanism ward until the forward motion of the skin is used for operating the different parts takes place.” which are to be brought to the fixed stretch- While it is said that the card does not er bar in carrying out the operation intend touch the surface of the skin so that the ed. In the respondents' machine the same hair and fur are both straightened as the application of power moves the stretcher skin is fed forward, it is true that the teeth bar and, by the co-operation of the feeding of the card in some measure hold down the apparatus as above outlined feeds the ma- fine fur, and it is insisted that the mechani. chine by bringing the pelt forward, at the cal equivalent of this card is found in resame time actuating the knives, in practi- spondents' machine in the compression bar, cally one operation. This seems to us to which also acts to hold down the fur before be a distinct mechanical departure, as well it is carried to the separating brush. But as an advance upon the Sutton machine, this bar has no carding feature to it, and when considered in view of the results ac- cannot be made to perform the functions of complished.

a card; it has no separate teeth, and is Moreover, if infringement could be other- not a card or the mechanical equivalent of wise sustained, the decree must be affirmed, one shown and described and made a part because the eighth claim has made the sta- of the eighth claim. tionary card, shown at "E" in the drawing, We think the Circuit Court of Appeals an essential part of the mechanism de- was right in the conclusion that the mechanscribed. It may be that this card is un- ism of the respondents was so materially necessary, and that it was dropped from different from the Sutton patent as to avoid the later patents issued to Sutton ( but it is the infringement alleged; and that an essenin this claim, and as was said by Judge tial element of the eighth claim of the Wallace in his dissenting opinion in Cimi- Sutton patent was not used by the respondotti Unhairing Co. v. Near seal Unhairing ents. Co, 53 C. C. A. 161, 115 Fed. 507, 509, “the Decree affirmed.

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(199 U. S. 1) PEOPLE OF THE STATE OF NEW YORK | of the state. N. Y. Laws, 1899, chap. 712,

ew rel. METROPOLITAN STREET RAIL- .p. 1589. The first section reads : WAY COMPANY, Piff. in Err.,

“Section 1. Subdivision 3 of $ 2 of the

tax law is hereby amended to read as folSTATE BOARD OF TAX COMMISSION- lows: ERS.

"3. The terms 'land,' 'real estate,' and

‘real property,' as used in this chapter, inContracts_impairment of obligation-valid- clude the land itself above and under wa

ity of tax on special franchisesdue proc- ter, all buildings and other articles and ess of law equal protection of the laws. structures, substructures and superstruc

tures, erected upon, under, or above, or af1. The special franchise tax imposed by N. Y. fixed to the same; all wharves and piers,

Laws 1899, chap. 712, does not impair the including the value of the right to collect obligation of the contracts by which the state wharfage, cranage, or dockage thereon; all or municipality granted the right to construct, operate, and maintain street railways bridges, all telegraph lines, wires, poles, and in the city of New York in consideration of appurtenances; all supports and inclosures the payment of a gross sum or of the annual for electrical conductors and other appurpayment of a fixed amount or fixed percent- tenances upon, above, and under ground; age of earnings, where such payments are no all surface, underground, or elevated railwhere declared to be in lieu of, or as the

roads, including the value of all franchises, equivalent or substitute for, taxes.

The reduction, on account of annual pay rights, or permission to construct, mainments “in the nature of a tax” covered by tain, or operate the same in, under, above, existing agreements, which is made by N. Y. on, or through streets, highways, or publio Laws 1899, chap. 712, from the amount of places; all railroad structures, substruc

. , the special franchise tax provided for by that | tures and superstructures, tracks and the statute, does not render the statute invalid, either as denying the equal protection of the iron thereon; branches, switches, and other laws to street railway companies who agreed fixtures permitted or authorized to be to pay a lump sum for their franchises, or as made, laid, or placed in, upon, above, or depriving such companies of their property under any public or private road, street, or

without due process of law. 8. The exemption of the subsurface street rall- ground; all mains, pipes, and tanks laid or way in New York

city from the operation of placed in, upon, above, or under any public the special franchise tax authorized by N. or private street or place for conducting Y. Laws 1899, chap. 712, does not make that steam, heat, water, oil, electricity, or any statute invalid, as denying the owners of the property, substance, or product capable of surface street railways in that city the equal transportation or conveyance therein or protection of the laws, or as depriving them of their property without due process of law. that is protected thereby, including the

value of all franchises, rights, authority, [No. 74.]

or permission to construct, maintain, or

operate, in, under, above, upon, or through Argued April 17, 18, 19, 1905. Decided May any streets, highways, or public places, any

mains, pipes, tanks, conduits, or wires, with 29, 1905.

their appurtenances, for conducting water, N ERROR to the Supreme Court of the substance, or electricity for telegraphic,

, IN N ERROR to the Supreme Court of the steam, heat, light, power, gas, oil, or other, State of New York to review a judgment telephonic

, or other purposes; all trees and sustaining an assessment of a street railway underwood growing upon land, and all franchise, entered pursuant to the mandate mines, minerals, quarries, and fossils in and of the Court of Appeals of that state, which under the same, except mines belonging to had reversed a judgment of the Appellate Di: the state. A franchise, right, authority, or vision of the Supreme Court for the Third

permission specified in this subdivision Department, which had in turn reversed the shall

, for the purpose of taxation, be known judgment of the Supreme Court entered at à special term held in and for the county of shall be deemed to include the value of the

as a 'special franchise.' A special franchise Albany on a writ of certiorari to review the tangible property of a person, copartneraction of the state board of tax commission-ship, association; or corporation situated in, ers. Affirmed.

upon, under, or above any street, highway, See same case below in Appellate Division public place, or public waters in connection of Supreme Court, 79 App. Div. 183, 80 N. with the special franchise. The tangible Y. Supp. 85; in Court of Appeals, 174 N. Y. property so included shall be taxed as a 417, 63 L. R. A. 884, 67 N. E. 69.

part of the special franchise. No property

of a municipal corporation shall be subject Statement by Mr. Justice Brewer:

to a special franchise tax." On May 26, 1899, the legislature of New The portions in italics are the new matYork passed an act amending the tax law 'ter introduced by the amendment. Other

25 S. C.-45.

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sections were added to the tax law, of and one section authorized certiorari to rewhich § 46 is as follows:

view their proceedings. "§ 46. Deduction from special franchise

Under this law an assessment was made tax for local purposes. If, when the tax of the franchises belonging to the plaintiff assessed on any special franchise is due and in error, a corporation created by the conpayable under the provisions of law appli- solidation of several corporations, having cable to the city, town, or village in which franchises for the maintenance and operathe tangible property is located, it shall ap- tion of street railroads in the city of New pear that the person, copartnership, associ-York. A certiorari to review this assessation, or corporation affected has paid to ment was finally decided by the court of such city, town, or village for its exclusive appeals of the state, which, on April 28, use within the next preceding year, under 1903 (174 N. Y. 417, 63 L. R. A. 884, 67 N. any agreement therefor, or under any stat. E. 69), sustained the assessment, and reute requiring the same, any sum based upon manded the case to the special term of the a percentage of gross earnings, or any other supreme court, by which court a final judg. income, or any license fee, or any sum of ment was entered, June 22, 1903. Theremoney on account of such special franchise, upon this writ of error was sued out. Plaingranted to or possessed by such person, co- tiff in error makes three assignments of partnership, association, or corporation, error: which payment was in the nature of a tax, "I. Error in declining to hold that the all amounts so paid for the exclusive use act of the legislature of the state of New of such city, town, or village, except money York, approved May 26th, 1899 (chap. 712, paid or expended for paving or repairing of Laws 1899), entitled 'An Act to Amend the pavement of any street, highway, or public Tax Law in Relation to the Taxation of place, shall be deducted from any tax based Public Franchises as Real Property,' in so on the assessment made by the state board | far as it authorizes the assessment imposed of tax commissioners for city, town, or vil- by the state board of tax commissioners on lage purposes, but not otherwise; and the March 20, 1900, upon the franchises of the remainder shall be the tax on such special (plaintiff in error] relator above named, franchise payable for city, town, or village deprives said relator of its property withpurposes. The chamberlain or treasurer of out due process of law, in contravention of a city, the treasurer of a village, the super- the 14th Amendment of the Constitution visor of a town, or other officer to whom of the United States. any sum is paid for which a person, copart- "II. Error in declining to hold that said nership, association, or corporation is en- legislative enactment, in so far as it autitled to credit as provided in this section, thorizes the said assessment denies to said shall, not less than five nor more than relator the equal protection of the laws, in twenty days before a tax on a special fran- contravention of the 14th Amendment to chise is payable, make and deliver to the the Constitution of the United States. collector or receiver of taxes or other offi- “III. Error in declining to hold that said cer authorized to receive taxes for such city, legislative enactinent, in so far as it autown, or village, his certificate showing the thorizes the said assessment, impairs the several amounts which have been paid dur- obligations of contracts, in contravention ing the year ending on the day of the date of $ 10, article 1, of the Constitution of of the certificate. On the receipt of such | the United States.” certificate the collector, receiver, or other Prior to 1874 the legislature of New officer shall immediately credit on the tax York made direct grants of franchises, roll to the person, copartnership, associa- rights, or privileges to use the streets of tion, or corporation affected the amount the city of New York. In that year the folstated in such certificate, on any tax leviedlowing amendment to the Constitution was against any person, copartnership, associ- adopted (Constitution 1846, as amended, ation, or corporation on an assessment of a art. 3, § 18): special franchise for city, town, or village “The legislature shall not pass a private purposes only, but no credit shall be given or local bill in any of the following cases: on account of such payment or certificate in any other year, nor for a greater sum "Granting to any corporation, associathan the amount of the special franchise tion, or individual the right to lay down tax for city, town, or village purposes, for railroad tracks. the current year; and he shall collect and “But no law shall authorize the construcreceive the balance, if any, of such tax, astion or operation of a street railroad exrequired by law."

cept upon the condition that the consent of Other sections provide the machinery for the owners of one half in value of the propassessment. This assessment was to be made erty bounded on, and the consent also of by the state board of tax commissioners, the local authorities having the control of, that portion of a street or highway upon ties shall, in all cases, be applied for in which it is proposed to construct or oper writing, and when granted shall be upon ate such railroad, be first obtained, or, in the express condition that the provisions of case the consent of such property owners this act pertinent thereto shall be complied cannot be obtained, the general term of the with, and shall be filed in the office of the supreme court, in the district in which it is county clerk of the county in which said proposed to be constructed, may, upon ap- railroad is located.” plication, appoint three commissioners, who In 1886 an act amending a prior act of shall determine, after a hearing of all par- the same year was passed (Laws 1886, ties interested, whether such railroad ought chap. 642, p. 919), which contained the folto be constructed or operated, and their de. lowing terms: termination, confirmed by the court, may “Sec. 1. The local authorities of any inbe taken in lieu of the consent of the prop- corporated city or village, to whom applierty owners.”

cation may be made for consent to the con. In 1884 an act was passed (Laws 1884, struction, maintenance, use, operation, or chap. 252, p. 309) giving to the local au- extension of a street railroad, or a railroad thorities power to grant franchises for or railway for the transportation of passenstreet railroads. This act provided : gers, mails, or freight, over, upon, under, or

“Sec. 7. The local authorities of any in- through any of the streets, roads, avenues, corporated city or village to whom appli- parks, or public places in such city or vilcation, under the provisions of this act, lage, must provide, as a condition of the may be made for consent to the construc- said consent to the use of said street, road, tion, maintenance, use, operation, or exten- avenue, park, or public place, that the sion of a street surface railroad upon any right, franchise, and privilege of using the street, road, avenue, or highway, may, at said street, road, avenue, park, or public their option, provide for the sale of and sell place shall be sold at public auction to the at public auction the franchise, subject to bidder who will agree to give the largest all the provisions of this act, to so con percentage per annum of the gross receipts struct, maintain, use, operate, or extend of said company or corporation, with adesuch street surface railway. .

quate security, as hereinafter provided, for “Sec. 8. Every corporation incorporated the fulfilment of said agreement, and for under, or constructing or operating a rail the commencement and completion of such road constructed or extended under, the road according to the plan or plans, and on provisions of this act, within the cities of the route or routes, fixed for its constructhe state having a population of two hun- tion, within the time or times hereinafter dred and fifty thousand or more, as afore- designated and prescribed therefor; but this said, shall, for and during the first five agreement shall not release any such road years after the commencement of the oper- from the percentages required to be paid ation of any portion of its railroad, annual- by chapter 252 of the Laws of 1884. The ly, on the 1st day of November, pay into legislature expressly reserves the right to the treasury of said respective cities in regulate and reduce the rate of fare on such which its road is located to the credit of railroad or railway. the sinking fund thereof, 3 per cent of its “And in the event of the failure or regross receipts for and during the year end-fusal of the party or corporation operating ing the next preceding 30th day of Sep- or using the railroad to be constructed as tember, and after the expiration of said five aforesaid, to pay the rental or percentage years make a like annual payment into the of gross earnings agreed upon, then, upon treasury of said respective cities for the notice to the said party or corporation,-of credit of said sinking funds, of 5 per cent not less than sixty days,—the said consent instead of 3 per cent of said gross receipts: and right to operate such railroad may be Provided, however, That every corporation declared forfeited, and the same may be renow existing and operating a street-surface sold to the highest bidder in the manner railroad which shall extend its tracks or above provided.” construct branches therefrom, and operate The special acts passed before the amendsuch extensions or branches under the proment of 1874, which are claimed to constivisions of this act, or the corporation oper- tute contracts, the obligations of which are ating such branches or extensions, shall pay impaired by this tax legislation, are found, such percentages as aforesaid only upon first, in chap. 625 of the Laws of 1868,

. such portions of its gross receipts as shall which granted to certain persons the right bear the same proportion to the whole value to construct, maintain, and operate and use thereof as the length of such extension and a street railroad, with a provision that "the branches shall bear to the entire length of said persons, or their assigns, shall pay to its tracks.”

the sinking fund commissioners of the city “Sec. 4. The consent of the local authori.' of New York the sum of $1,000 per annum, “

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