470 And the court and judges add that no ap- [2] This answer of the District Court and plication had been made in any way to re-judge is also clearly sufficient and concluview the action taken by the District Judge on the motion to stay. [1] Obviously it is a conclusive answer to the prayer of the petitioners for a writ of mandamus to the Circuit Court of Appeals and to the judges thereof directing the entry of a stay of proceedings that the case was not, when the stay was refused, and is not now, pending in that court. * After this overruling of their motion for a stay by the Circuit Court of Appeals for the Sixth Circuit, the petitioners herein made a similar application to the District Court for the Southern District of Ohio for a stay of proceedings until the New York case should be decided by this court, which motion was also denied. The District Court and the judge thereof in the return to the rule issued herein give as reasons for such denial: (1) That the defendants had permitted the time to expire in which to apply to this court for a review of the decree of the Circuit Court of Appeals for the Sixth Circuit on certiorari without making any application for such review, and therefore the court concluded that the rights of the parties as to unfair competition and copyright infringement, which remained after the holding that the patent was invalid, had become settled. (2) That the case before the Circuit Court of Appeals for the Second Circuit was an appeal from an order granting a preliminary injunction, and that to the court, not having the record in that suit before it, the New York case seemed to involve only the question as to the effect of the decree of the Circuit Court of Appeals for the Sixth Circuit upon the case in the Second circuit, and could not, therefore, be determinative of the rights of the parties in the Ohio case. (3) That there did not seem to the court to be any conflict between the decisions by the Sixth and Second Circuit Courts of Appeals because the facts of the two cases, as the court was advised, were so different that the decisions could not be the same upon their merits. (4) That from the statement of counsel for Wagner that a fire had occurred on the floor of the building in which the Wagner outfits, manuals, etc., and books had been stored, resulting in great injury to them, the court concluded it to be the part of prudence that the marshal should take possession of such property and *books as soon as possible, and that there seemed to it no good reason for further delay in the accounting. sive. It shows that the court was called upon to judicially determine the scope of the decision of the Circuit Court of Appeals for the Second Circuit, reversing the action of the District Court granting a temporary injunction, and whether or not that decision was in conflict with the decision by the Circuit Court of Appeals for the Sixth Circuit; to forecast, as best it might, what the scope and effect of the decision of this court in the New York case would be upon the rights of the parties as determined in the Ohio case, and, having regard to the rights of the plaintiff and the conduct of the defendants, whether, after four years of obviously very strenuous litigation, the accounting should be further delayed by the prospect that the decision of this court might render the results of it valueless. Mandamus is an extraordinary remedy, to be resorted to for the purpose of securing judicial action, not for determining in advance what that action shall be. In re Rice, 155 U. S. 396, 15 Sup. Ct. 149, 39 L. Ed. 198. It may not be resorted to, as the petitioners seek to resort to it here, for the purpose of controlling minor orders made in the conduct of judicial proceedings, and the fact that the result of litigation may possibly be such that interlocutory proceedings taken may not prove of value is not a sufficient reason for calling the writ into use for the purpose of forbidding such proceedings, even though the cost of them cannot be recovered from the opposing party or even though the order cannot be reversed on error or appeal. Ex parte Newman, 14 Wall. 152, 165, This from American 168, 20 L. Ed. 877. Construction Co. v. Jacksonville, Tampa & Key West Railway Co., 148 U. S. 372, 379, 13 Sup. Ct. 758, 761 (37 L. Ed. 486), is sharply pertinent to the application before us: *"Least of all can a writ of mandamus be granted to review a ruling or interlocutory order made in the progress of a cause; for, as obwould be a plain evasion of the provision of the served by Chief Justice Marshall, to do this act of Congress that final judgments only should be brought before this court for re-examination'; would introduce the supervising power of this court into a cause while depending in an inferior court, and prematurely to decide it'; would allow an appeal or writ of error upon the same question to be 'repeated, to the great oppression of the parties'; and 'would subvert our whole system of jurisprudence.'" The petitioners have misconceived the scope and applicability of the remedy of mandamus, and the rule is Discharged and the petition dismissed. *472 (219 U. S. 389) STANDARD OIL, CO. v. GRAVES. (Argued Jan. 23, 1919. Decided April 14, 1919.) 1. COURTS No. 177. "The inspection law referred to in the complaint was first passed during the legislative session for the year 1905 (Laws 1905, p. 310). That act was amended in 1907, and will be found in chapter 192 of the Laws of 1907, p. 413 (Rem. Code, § 6051 et seq.). Section 3 (Id., § 6052) of this act provides that all gaso 366(1)—FEDERAL COURTS-DE-line, benzine, distillate or other volatile product CISIONS OF STATE COURT-CONSTRUCTION OF While the national Supreme Court follows the decision of the state's highest court as to meaning of a state Oil Inspection Law, the name given the statute is not conclusive, but it must be judged by its necessary effect, and, if that is to violate the national Constitution, the law must be declared void. 2. COMMERCE 51-STATE OIL INSPECTION LAW-BURDEN OF INTERSTATE COMMERCE. The Oil Inspection Law of Washington is violative of the commerce clause of the federal Constitution as imposing a direct burden on interstate commerce, in case of oils brought in from another state; the inspection fees which must be paid before the importer can sell being, as shown by the revenue yielded, grossly in excess of cost of inspection. of petroleum intended for use or consumption in this state for illuminating, manufacturing, domestic or power purposes, 'before being sold or offered for sale,' shall be inspected by the state oil inspector or his deputies. When the inspec tion is made, a certificate is to be issued, and the barrel or receptacle which contains the oil must be labeled or branded. Section 4 (Id., § 6053) of the act contains a schedule of the fees which shall be paid for the inspection. Section 6 (Id., § 6055) provides that if any person or persons, whether manufacturer, vender or dealer, or as agent or representative of any manufacturer, vender or dealer, 'shall sell or attempt to sell' to any person, firm or corporation in this state, any illuminating oil, gasoline, benzine, distillate or any volatile product of petrothis state, that has not been inspected and leum, intended for use or consumption within branded according to the provisions of the act, 'shall be guilty of a misdemeanor.' By the In Error to the Supreme Court of the Laws of 1913, chapter 60, p. 196 (Rem. Code, State of Washington. Action by the Standard Oil Company against H. T. Graves, individually and as Commissioner of Agriculture of the State of Washington. Judgment for plaintiff was reversed by the Supreme Court of Washington (94 Wash. 291, 162 Pac. 558), and plaintiff brings error. Reversed. Messrs. Oscar Sutro, of San Francisco, Cal., Richard A. Ballinger, of Seattle, Wash., E. S. Pillsbury, of San Francisco, Cal., Alfred Battle and Bruce C. Shorts, both of Seattle, Wash., and F. D. Madison and Alfred Sutro, both of San Francisco, Cal., for plaintiff in error. § 3000-1 et seq.), it was made the duty of the commissioner of agriculture to exercise all the powers and perform all the duties which, by the law of 1907, were vested in, and required to be performed by, the state oil inspector." The case was heard upon demurrer to the amended complaint. Among other things, the amended complaint set out: "Plaintiff is engaged in the state of California in the business of producing and buying crude petroleum oil, and of manufacturing and refining the same, and of shipping products of such manufacture, to wit, illuminating oils, gasoline, distillate and other volatile products of petroleum from its refineries in California into the state of Washington, where the same are sold by this plaintiff in large quantities for use and consumption in the state of Washington, for illuminating, manufacturing, domestic and power purposes. None of the products herein*Mr. Justice DAY delivered the opinion of before *referred to are manufactured by plaintiff the Court. Messrs. L. L. Thompson, W. V. Tanner, and Glenn J. Fairbrook, all of Olympia, Wash., for defendant in error. in the state of Washington, but all of said products are shipped into said state from the state of California. Plaintiff in error filed a complaint and an amended complaint in the superior court of "The plaintiff maintains in the state of WashThurston county, Washington, to enjoin the collection of fees prescribed by the Oil In-ington wharves and docks, tanks, warehouses, buildings, machinery, horses and wagons, and spection Act of that state upon the ground other equipment for receiving, shipping, hanthat the statute was in contravention of the dling, selling and otherwise distributing said Constitution of the United States. The supe- products shipped as aforesaid from the state of rior court held the law to be unconstitutional. California into the state of Washington." Upon appeal the Supreme Court of Washington reversed the judgment. 94 Wash. 291, 162 Pac. 558. The statute is the "State Oil Inspection Law" (Laws 1907, p. 412) of the state of Washington. Its provisions are thus summarized in the opinion of the Supreme Court of the state: The fees collected under the inspection acts are set out in the amended bill of complaint: The total receipts from the fees collected under said statute, chapter 192 of the Laws of 1907, and chapter 161, Laws of 1905, of the state of Washington, for the inspection therein provided for of said products mentioned in said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *893 laws intended for sale or consumption in this state, and the total disbursements in connection with the collection thereof, and in connection with the administration of said laws, and the net revenue from such receipts during the following years have respectively been the following: Date. ments. June 30 to Dec. 31, 1905. $19,084.29 $5,693.19 $4,947.70 $23,493.93 $8,684.87 Jan, 1 to Dec. 31, 1909.. $24,799.67 $8.802.90 $39,628.93 $42,957.91 $70,785.91 $335,776.30 $80,103.37 $255,672.93 tution, certainly while the same are in the original receptacles or containers in which they are brought into this state. Under this law the oils cannot be lawfully sold at all until the importer has paid the inspection fees provided in the statute, after inspection. That inspection fees, so grossly in excess of Receipts. Disburse- Revenue. the cost of inspection imposed upon articles $745.49 brought into the state in interstate commerce $2.929.06 are unconstitutional, was held in Foote v. $11,532.59 Maryland, 232 U. S. 494, 34 Sup. Ct. 377, 58 $14,809.06 L. Ed. 698. In that case the plaintiffs were $15,996.77 $26,705.64 engaged in the business of packing oysters in $29,581.57 the city of Baltimore, and brought large quantities in from the state of Maryland and also from the waters of the states of Virginia and New Jersey. These oysters were inspected in Baltimore, where they were unloaded from vessels, by officials appointed under the provisions of the Maryland act which fixed an inspection fee of one cent per bushel to be paid one-half by the seller and one-half by the buyer. The case was brought to this court upon the ground that the inspection fee was excessive, and a burden upon interstate commerce, and levied an unlawful tax upon goods shipped into Maryland from other states. cessive nature of the inspection fees the reIt was held that in view of the exquirement of the payment thereof necessarily in excess of the expenses of inspection, and imposed a burden upon interstate commerce that the act was therefore void. The subject late Mr. Justice Lamar, speaking for this was fully considered in an opinion by the court, and after recognizing the power of the state to impose reasonable inspection fees, and that such legislation will not be declared It thus appears that the expense of administration of the statutes from 1905 to 1914 was $80,103.37. The total *receipts for the same time $335,776.30, a difference of $255,672.93. It is contended by the plaintiff in error that this inspection law violates the commerce clause, article 1, § 8, of the Constitution of the United States, in that it directly burdens such commerce by imposing inspection taxes far in excess of the cost of inspection. The Supreme Court of the state held that the tax was not upon property, but could be sustained as an excise or occupation tax upon the business of selling oil within the state. The reason given by the court for holding that the tax could not be upheld as a property tax rested upon provisions of the state Constitution. [1] While this court follows the decisions of the highest court of a state, as to the void unless the fees are obviously and largely beyond what is needed for the cost of inspec tion, he said: Mc "If, therefore, it is shown that the fees are disproportionate to the service rendered, or that they include the cost of something beyond legitimate inspection to determine quality and condition, the tax must be declared void because such costs, by necessary operation, obstruct the freedom of commerce among the states. Lean v. Denver & Rio Grande R. R. Co., 203 U. S. 38 [27 Sup. Ct. 1, 51 L. Ed. 78]; Brimmer v. Rebman, 138 U. S. 78, 83 [11 Sup. Ct. 213, 35 L. Ed. 861]; Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64 [24 Sup. Ct. 208, 48 L. Ed. 342]; Patapsco Co. v. North Carolina, 171 U. S. 345, 354 [18 Sup. Ct. 862, 43 L. Ed. U. S. 380, 394 [32 Sup. Ct. 152, 56 L. Ed. 240]; 191]; Red 'C' Oil Co. v. North Carolina, 222 Savage v. Jones, 225 U. S. 501, 504 [32 Sup. Ct. 715, 56 L. Ed. 1182]." meaning of statutes in cases of this character, the name given to the statute is not conclusive. It must be judged by its necessary effect, and if that is to violate the Constitution of the United States, the law must be declared void. Minnesota v. Barber, 136 U. S. 313. 319, 10 Sup. Ct. 862, 34 L. Ed. 455; Crew Levick v. Pennsylvania, 245 U. S. 292, 294, 38 Sup. Ct. 126, 62 L. Ed. 295, and cases cited. [2] That the state may pass proper inspection laws for oils brought into its borders in interstate commerce, there can be no question. But, taking the allegations of the complaint to be true, as we must for present purposes, the cost of the inspection was greatly less than the tax imposed. The general principle that a state may not impose burdens upon interstate commerce is so well settled, and has been so often declared in the opinions of this court, that a repetition of the reasons which have induced these decisions The principles stated in Foote v. Maryland would be superfluous. In this case the were recognized in Pure Oil Co. v. Minnesota, amended complaint alleges that the oils decided by this court at this term, 248 U. S. were shipped into Washington from Califor- 158, 39 Sup. Ct. 35, 63 L. Ed. 180. The inspecnia. They are brought there for sale. This tion fees there in question were held not exright of sale as to such importations is pro- cessive, and we said (248 U. S. page 162, 39 tected to the importer by the federal Consti- | Sup. Ct. page 37, 63 L. Ed. 180): 39 SUP.CT.-21 *396 $395 *397 “But, if such inspection charge should be ob- | viously and largely in excess of the cost of inspection, the act will be declared void, because constituting, in its operation, an obstruction to and burden upon that commerce among the states the exclusive regulation of which is committed to Congress by the Constitution." applies where he completed his invention during such time, though his work thereon was outside hours of duty. Appeal from the Court of Claims. Suit by David F. Moore against the United States. From judgment for defendant (52 Ct. Cl. 532), plaintiff appeals. Affirmed. *Messrs. Samuel Herrick and Rufus S. Day, both of Washington, D. C., for appellant. Mr. Assistant Attorney General Frierson, for the United States. Mr. Justice Clarke delivered the opinion of the Court. It is said that the Foote Case did not over- | rule the previous case of General Oil Co. v. Crain, 209 U. S. 211, 28 Sup. Ct. 475, 52 L. Ed. 754, and that the principles of that case should be controlling here. In the Crain Case this court sustained a tax upon oil which had been removed from the tank cars in which it was transported into Tennessee, and which, although destined for points beThe appellant sued the United States in yond Tennessee, was then in storage in that the Court of Claims to recover compensation state. The distinction between that case and for the use, without license or lawful right, the one now under consideration is obvious. of a tool, which was covered by United Bacon v. Illinois, 227 U. S. 504, 33 Sup. Ct. States letters patent, of which he was the 299, 57 L. Ed. 615, is also relied upon. In owner. In his amended petition he alleged that case this court sustained a property tax that during the years 1903 to 1914, inclusive, upon grain brought from another state, but he invented the tool in question, which taken from the carrier and held by the owner in Illinois with full power of disposition the decks, sides and bottoms of vessels where was adapted to be used "as a reefing iron on in that state, and although intended to be ul-wood caulking is done"; that he entered the timately forwarded to a point beyond the state; the property tax, after a review of the previous decisions of this court, was sustain ed. We reach the conclusion that the statute imposing these excessive inspection fees, in the manner stated, upon all sales of oils brought into the state in interstate *commerce necessarily imposes a direct burden upon such commerce, and is therefore violative of the commerce clause of the federal Constitution. We may remark that the conclusion at which we have arrived has been reached by the Supreme Courts of North Dakota and Ohio. Bartels Northern Oil Co. v. Jackman, 29 N. D. 236, 150 N. W. 576; Castle v. Ma91 Ohio St. 296, 110 N. E. 463, Ann. Cas. 1917A, 164. son, It follows that the judgment of the Supreme Court of Washington must be Reversed. (249 U. S. 487) MOORE v. UNITED STATES. employment of the government as a wood caulker in a navy yard on March 26, 1913, and continued therein until July 16, 1914; "that during the month of May, 1914, your time, labor and study, completed his invenpetitioner, after expending a great deal of tion" of the tool afterwards patented; and that during the hours of his employment by the government he did not do any work upon his invention, but that such work as was performed upon it subsequent to March 26, 1913, when he entered the government employ, was performed at his home during his absence from duty in the navy yard. For the extensive use which the government had made of the tool he prayed for compensation, which had been demanded and refused. The appellant can maintain such a suit, if at all, only by warrant of the act of Congress, approved June 25, 1910 (36 Stat. 851, c. 423 [Comp. St. § 9465]). This act provides that whenever any invention described in and covered by a patent from the United States shall hereafter be used by the United States without the license of the owner (Argued March 21, 1919. Decided April 14, thereof or lawful right to use the same, 1919.) No. 278. UNITED STATES 97-CLAIM AGAINST-USE The exception by Act June 25, 1910 (Comp. St. § 9465), from right to recover from United States for use by it without license of patented invention, of a case where the device was discovered or invented by a government employé "during the time of his employment or service," such owner may recover reasonable compensation for such use by suit in the Court of Claims. Of the three provisos in the act the third one is applicable to this case and reads: "And provided further, (3) that the benefits of this act shall not inure to any patentee, who, when he makes such claim is in the employment or service of the government of the United States; or the assignee of any such patentee; nor shall this act apply to any device discovered or invented by such employé during the time of his employment or service." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes +488 The appellant was not actually in the em-1 ploy of the government when he made his claim by bringing suit, but the Court of Claims dismissed his petition for want of jurisdiction on the ground that it showed on its face that the device was discovered during the time he was in the employment or service of the government, and that therefore the case fell within the third proviso of the act. This decision is so obviously right that discussion of it would be superfluous. The act of Congress must be read "according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending its operation." United States v. Temple, 105 U. S. 97, 99 (26 L. Ed. 967). No matter what the appellant may have done prior to May, 1914, it was in that month, he avers, that he completed his invention, and during the whole of that month he was in the employment or service of the government. To give the effect contended for to the allegation that the appellant confined his work on his invention to the hours when he was not actually on duty, but while he was in the government employ, would be to amend the statute, not to construe or interpret it. Virginia being a state which prohibits the manufacture or sale therein of intoxicating liquors for beverage purposes, the defendant in error was indicted for having transported into that state an enumerated quantity of whisky in violation of the provision in section 5 of the Post Office Appropriation Act of March 3, 1917, known as the Reed Amendment. 39 Stat. 1058, 1069, c. 162 (Comp. St. 1918, § 8739a). For the purposes of a motion to quash, the United States attorney furnished a bill of particulars of the evidence which the government intended to offer to sustain the indictment, and the defendant also made admissions which were recited in, such bill. The motion to quash, as elucidated by the bill of particulars, was granted on the ground that the statute, when rightly construed, did not embrace the acts charged. The United States prosecutes error. The case stated by the court below is this: "That the defendant was a passenger on a railroad train from Baltimore, Md., to Asheville, N. C., and that while the train was temporarily stopped at the station at Lynchburg, Va., he was arrested, his baggage examined, and it was found that he had in his valise some seven more of whisky. The particulars quarts or show clearly that the evidence will be that he had no intention of leaving the train at Lynchburg or at any other point in Virginia, and The judgment of the Court of Claims is that his sole intention was to carry the liquor Affirmed. (249 U. S. 373) UNITED STATES v. GUDGER. (Argued Dec. 11, 1918. Decided April 14, 1919.) No. 408. INTOXICATING LIQUORS 138-TRANSPOR TATION "INTO" STATE-REED AMENDMENT. The Reed Amendment (provision of Act March 3, 1917, § 5 [Comp. St. 1918, § 8739a]), prohibiting transportation of liquor in interstate commerce "into" any state which prohibits the manufacture, etc., does not include the movement through such state into another. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Into.] In Error to the District Court of the United States for the Western District of Virginia. Indictment against Homer Gudger for violation of the Reed Amendment was quashed, and the United States brings error. Affirmed. with him into the state of North Carolina to be there used as a beverage." In addition to these facts we observe that the bill of particulars contained this recital: "The charge in the indictment that the defendant caused to be transported liquor to Lynchburg, in the state of Virginia, has no other foundation than the fact that he was arrested while the train was stopped at the railroad station at Lynchburg, Va., and while he was en route to Asheville, N. C." The bill stated besides, that the accused was traveling on a through ticket from Baltimore to Asheville and return. Under this state of facts we think the court was clearly right in quashing the indictment, as we are of opinion that there is no ground for holding that the prohibition of the statute against transporting liquor in interstate commerce "into any state or territory the laws of which state or territory prohibit the manufacture," etc., includes the movement in interstate commerce through such a state to another. No elucidation of the text is needed to add cogency to this plain meaning, which would, however, be reinforced by the context if there were need to resort to it, Mr. Joseph S. Graydon, of Cincinnati, Ohio, since the context makes clear that the word for defendant în error. Mr. Assistant Attorney General Frierson, for the United States. "into," as used in the statute, refers to the state of destination, and not to the means by Mr. Chief Justice WHITE delivered the which that end is reached, the movement. opinion of the Court. through one state as a mere incident of trans For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes +375 |