supply back to plaintiffs' place of business in to the regulatory power of the state acting Cincinnati. The soft drinks in question are through the municipality, we are not condelivered in stopped bottles or siphons, ac- cerned with the question whether the genercording to their nature, and these are placed al language of the ordinances, if applied with (at the bottling works) in separate wooden respect to some other method of dealing with or metal cases, each case being open at the goods brought from state to state, might be top and holding a certain number of bottles repugnant to the federal Constitution. or siphons, according to the nature of the drinks and the custom of the trade. The filled bottles or siphons are carried upon the vehicle, sold, and delivered in these cases; each case remaining entire and unbroken, and nothing less than a case being sold or delivered. The retail dealers usually pay cash, and purchase only the contents of the bottles, while the bottles and cases remain the property of plaintiffs and are subsequently collected, when empty, by plaintiffs' drivers or agents on their regular visits. There are, however, a few customers who pay for and thereafter own the bottles in which distilled water is delivered. The ordinances were and are respectively applicable to all wholesale dealers in such soft drinks in Covington, whether the goods were or are manufactured within or without the state. from one *state to the other in response to orders previously received at their place of business in Cincinnati, plaintiffs are engaged in interstate commerce, not subject to the licensing power of the Kentucky municipality. The Court of Appeals in the present case, in line with its previous decisions in City of Newport v. Wagner, 168 Ky. 641, 646, 182 S. W. 834, Ann. Cas. 1917A, 962, and City of Newport v. French Brothers Bauer Co., 169 Ky. 174, 183 S. W. 532, recognizing the authority of the decisions of this court bearing upon the subject, conceded that this part of plaintiffs' business was not subject to state regulation. 177 Ky. 388, 197 S. W. 806. At the same time the court held that with respect to the remaining and principal part of the business conducted in Covington, that which consists in carrying a supply of goods from place to place upon wagons, exposing them for sale, soliciting and negotiating sales, and immediately delivering the goods sold, plaintiffs were subject to the licensing ordinances; and it is with this alone that we have to deal. If, with respect to this portion of their business, plaintiffs may be subjected [2] From the facts recited it is evident that, in essence, that part of plaintiffs' business which is subjected to regulation is the business of itinerant vender or peddler; a traveling from place to place within the state, selling goods that are carried about with the seller for the purpose. Plaintiffs in error insist that this view of the matter is untenable, because the courts of Kentucky have held that sales made to a retail merchant for resale do not constitute peddling within the meaning of the statutes of that state. Standard Oil Co. v. Commonwealth, 107 Ky. 606, 609, 55 S. W. 8; City of New *102 port v. French Brothers Bauer Co., 169 *Ky. 174, 185, 183 S. W. 532. These decisions, however, deal merely with a question of statutory definition; and it hardly is necessary to repeat that when this court is called upon to test a state tax by the provisions of the Constitution of the United States, our decision must depend not upon the form of the taxing scheme, or any characterization of it adopted by the courts of the state, but rather upon the practical operation and effect of the tax as applied and enforced. The state court could not render valid, by misdescribing it, a tax law which in substance and effect was repugnant to the federal Constitution; neither can it render unconstitutional a tax, that in its actual effect violates no constitutional provision, by inaccurately defining it. St. Louis Southwestern Ry. v. Arkansas, 235 U. S. 350, 362, 35 Sup. Ct. 99, 59 L. Ed. 265. [3] We have then, a state tax upon the business of an itinerant vender of goods as carried on within the state, a tax applicable alike to all such dealers, irrespective of where their goods are manufactured, and without discrimination against goods manufactured in other states. It is settled by repeated decisions of this court that a license regulation or tax of this nature, imposed by a state with respect to the making of such sales of goods within its borders, is not to be deemed a regulation of or direct burden upon interstate commerce, although enforced impartially with respect to goods manufactured without as well as within the state, and does not conflict with the "commerce clause." Woodruff v. Parham, 8 Wall. 123, 140, 19 L. Ed. 382; Machine Co. v. Gage, 100 U. S. 676, 25 L. Ed. 754; Emert v. Missouri, 156 U. S. 296, 15 Sup. Ct. 367, 39 L. Ed. 430; Baccus v. Louisiana, 232 U. S. 334, 34 Sup. Ct. 439, 58 L. Ed. 627. The peddler's license tax considered in Welton v. State of Missouri, 91 U. S. 275, 23 (40 Sup.Ct.) L. Ed. 347, was denounced only because it | U. S. 676 [25 L. Ed. 754]. But to tax the sale amounted to a discrimination against the of such goods, or the offer to sell them, before products of other states, and therefore to an they are brought into the state, is a very differinterference with ent thing, and seems to us clearly a tax on incommerce among the terstate commerce." states. To the same effect, Walling v. Michigan, 116 U. S. 446, 454, 6 Sup. Ct. 454, 29 L. Ed. 691. *103 *Of course the transportation of plaintiffs' goods across the state line is of itself interstate commerce; but it is not this that is taxed by the city of Covington, nor is such commerce a part of the business that is taxed, or anything more than a preparation for it. So far as the itinerant vending is concerned, the goods might just as well have been manufactured within the state of Kentucky; to the extent that plaintiffs dispose of their goods in that kind of sales, they make them the subject of local commerce; and, this being so, they can claim no immunity from local regulation, whether the goods remain in original packages or not. The distinction between state regulation of peddlers and the attempt to impose like regulations upon drummers who solicit sales of goods that are to be thereafter transported in interstate commerce has always been recognized. In Robbins v. Shelby Taxing District, 120 U. S. 489, at page 497, 7 Sup. Ct. 592, 596 (30 L. Ed. 694), Mr. Justice Bradley, who spoke for the court, said: "When goods are sent from one state to another for sale, or, in consequence of a sale, they become part of its general property, and amenable to its laws, provided that no discrimination be made against them as goods from another state, and that they be not taxed by reason of being brought from another state, but only taxed in the usual way as other goods are. Brown v. Houston, 114 U. S. 622 [5 Sup. Ct. 1091, 29 L. Ed. 257]; Machine Co. v. Gage, 100 *104 See, also, Crenshaw v. Arkansas, 227 U. S. 389, 399, 400, 33 Sup. Ct. 294, 57 L. Ed. 565, where the distinction was clearly set forth. And in all the "drummer cases" the fact has appeared that there was no selling from a stock of goods carried for the purpose but only a solicitation of sales, with or without the exhibition of samples; the goods sold to be thereafter transported from without the state. Rogers v. Arkansas, 227 U. S. 401. 408, 33 Sup. Ct. 298, 57 L. Ed. 569; *Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed. 719; Caldwell v. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229, 47 L. Ed. 336; Rearick v. Pennsylvania, 203 U. S. 507, 510, 27 Sup. Ct. 159, 51 L. Ed. 295; Dozier v. Alabama, 218 U. S. 124, 30 Sup. Ct. 649, 54 L. Ed. 965, 28 L. R. A. (N. S.) 264; Browning v. Waycross, 233 U. S. 16, 34 Sup. Ct. 578, 58 L. Ed. 828; Western Oil Refining Co. v. Lipscomb, 244 U. S. 346, 37 Sup. Ct. 623, 61 L. Ed. 1181; Cheney Bros. Co. v. Massachusetts, 246 U. S. 147, 153, 38 Sup. Ct. 295, 62 L. Ed. 632. (251 U. S. 134) and must be accounted for, which is best BONE V. COMMISSIONERS OF MARION done by a display of the patent and the case. First, as to the patent: It describes the COUNTY. (Argued Nov. 11, 1919. Decided Dec. 15, 1919.) invention as being one that No. 63. "relates to improvements in retaining walls for abutments to bridges, * * * and such PATENTS 328-FOR RETAINING WALL CON- places as it is desired to retain earth or other TAINING NO NOVELTY AND NOT INFRINGED. The Bone patent, No. 705,732, for a retaining wall of reinforced concrete, with a heel such that the weight of the earth thereon tends to keep the wall erect, held, under Rev. St. 4866, in view of prior patents and description of the device in foreign printed publications, to contain no patentable novelty, except, perhaps, in its special form, and in that respect not infringed. On Writ of Certiorari to the United States Circuit Court of Appeals for the Seventh Circuit. Suit by Frank A. Bone against the Commissioners of Marion County. Decree for defendants was affirmed by the Circuit Court of Appeals (249 Fed. 211, 161 C. C. A. 247), and complainant brings certiorari. Affirmed. Mr. Justice MCKENNA delivered the opinion of the Court. Suit brought in the District Court of the United States for the District of Indiana to restrain the infringement of a patent for a retaining wall, which, to quote petitioner, is "'a wall to prevent the material of an embankment or cut from sliding."" After issue joined and proofs submitted, the District Court (Anderson, J.,) entered a decree dismissing the bill for want of equity. The decree was affirmed by the Circuit Court of Appeals, to review which action this writ of certiorari was granted. The bill in the case is in the conventional form and alleges invention, the issue of a patent numbered 705,732, and infringement by respondent. The prayer is for treble damages, an injunction, and accounting. The answer of respondent is a serial denial of the allegations of the bill and avers anticipation of petitioner's device by prior patents and publications, in this and other countries. This summary of the issues is enough for our purpose and we need only add preliminarily to their discussion that Bone's device has the sanction of a patent and a decision sustaining it by the District Court for the Northern District of Ohio and the Circuit matter permanently in place with its face at an angle nearer vertical than it would naturally repose when exposed to the action of the elements or gravity," and "consists principally of introducing into masonry of concrete, stone or brick a framework of steel or iron in such way that the whole wall is so much strengthened thereby that the volume of the masonry may be greatly reduced, and yet the height, base, and strength against overturning, bulging, or settling will still be ample." The following figure represents a crosssectional view of the device—A representing the masonry, B the material retained, and B1 the earth on which the wall rests. The metal parts within A are indicated by the smaller letters. The utility of the wall of these shapes is represented to be that it is "not so liable to be overturned from the pressure of material behind it as would be a wall of the same height and area of section but having a rectangular, trapezoidal or triangular shaped section," the latter shapes requiring more Court of Appeals for the *Sixth Circuit. The masonry. And it is said that the patented difference of decision in that circuit and the wall, "having more base and less weight" Seventh circuit is an important consideration than such other shapes, "will rest more se *136 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) curely on a soft or yielding foundation, the their co-operating functions, and adjudged weight of the material resting on the heel" the patent valid and the wall of the city of causing the latter "to press on the earth be- Akron an infringement of it. low, and thus cause friction to prevent the whole wall from sliding outward." This is the especial effect of the patent, achieved by the wall of the shape described, and distinguishes it, is the contention, from the retaining walls of the prior art. The patentee admits, however, that retaining walls had been "constructed of concrete and steel, but none" to his "knowledge" "had been supported on their own base as" his, nor had "any of them entirely inclosed the steel within the concrete," nor had "any of them used the weight of the material retained as a force to retain itself.” Such, then, is the wall and the utility attributed to it. The combinations which may be made with it are set forth in 17 claims, of which 1, 3, 5, 16, and 17 are involved in the present action. Counsel for petitioner considers, however, that 1 and 17 are so far illustrative that the others need not be given. They are as follows: "1. The combination with a retaining wall *138 having a *heel, of a metal structure embedded vertically in said wall and obliquely in said heel, so that the weight of the retained material upon the heel of the metal structure will operate to retain the wall in vertical position." "17. The combination with a retaining wall having an inclined heel and a toe at opposite sides thereof, of a metal structure embedded within said wall and heel, said structure consisting of upright bents at the back part of the vertical wall and continuing down along the upper part of the heel of said wall to the back part thereof, whereby by reason of the toe and the heel the weight of the retained material upon the heel of the metal structure will operate to maintain the wall in a vertical position." So much for the device of the patent. How far was it new or how far was it anticipated? Bone's idea was conceived in 1898, and his patent issued in 1902, upon an application made in 1899, but according to his counsel the value of the invention was not recognized "until after the lapse of several years," when he, Bone, brought a suit against the city of Akron, Ohio, in the District Court for the Northern District of Ohio, in vindication of the patent and in reparation for its infringement. He was given a decree which was affirmed by the Circuit Court of Appeals for the Sixth Circuit. 221 Fed. 944, 137 C. C. A. 514. The District Court (Judge Day) gave a clear exposition of the patent, the relation of 139 its metal parts1 to the ma*sonry parts and The following is an extract from Judge Day's opinion: "The reinforcing members [metallic members] are placed near the back face of the wall and heel and near the lower face of the toe. The oblique reinforcing bars in the heel acting in conjunction with 40 SUP.CT.-7 The Circuit Court of Appeals affirmed the decree. The court said that the record disclosed nothing which anticipated "the substantial thought of the patent." If it had done so, or, to quote the exact language of the court: "If the prior art had shown a structure intended for a retaining wall, and having a heel such that the weight of the earth thereon would tend to keep the wall erect, it might be difficult to find invention in merely adding the form of reinforcement most suitable to create the desired tensile strength; but we find no such earlier structures." 2 140 *On application for rehearing the court refused to direct the District Court to open the case to permit the defendant to put in proof regarding a German publication of 1894. Those decisions confronted the District Court in the present suit and fortified the pretensions of the patent. They were atthe uprights serve the function of a cantilever beam the heel is transferred to the upright portion of the whereby the weight of the material pressing upon wall and operates to retain the wall in a vertical position... "Considering the claims of the patent, and the testimony, I am of the opinion that Bone, the patentee, was the first to reinforce the retaining wall, or similar wall of concrete or masonry in such a manner that the weight of the retained material would be utilized to impart through the reinforcing members tensile resistance to the stern or vertical part of the wall, thereby fortifying this part of the wall against breaking strains. "This was an advancement in the art and possessed novelty and the structure of the defendant city infringed this patent. "While many of the features of concrete structures were old, yet this combination as outlined and described in this Bone application for a patent, was new. It is also in evidence that there has been a large sale and general acquiescence in the Bone patent." The following is an extract from the opinion of the Circuit Court of Appeals: "The record discloses nothing anticipating the substantial thought of the patent. Masonry or con crete retaining walls were deep and heavy, and maintained by gravity in their resistance against a horizontal stress. There was no occasion for rein forcement. Sustaining walls had been built of concrete with vertical reinforcement; but they were maintained against side strain by cross-ties or beams, without which they might tip over. If the prior art had shown a structure intended for a retaining wall, and having a heel such that the weight of the earth thereon would tend to keep the wall erect, it might be difficult to find invention in merely adding the form of reinforcement most suitable to create the desired tensile strength; but we find no such earlier structures. Those which have that shape are sustaining walls only, and were so obviously unfit for use as retaining walls that no one seems to have seen the utility for that purpose, of which the form, when properly adapted and strengthened, was capable. There is also a prior wall, wholly of metal, fairly disclosing a unitary heel adapted to hold the wall erect; but to see that this could become merely a skeleton imbedded in concrete may well have required, in 1898, more than ordinary vision. Upon the whole, we think invention was involved, and the claims are valid." tacked, however, as having been pronounced Planat which appeared in 1894 and 1896 in upon a different record and this conclusion a scientific magazine called "La Construction was accepted by the District Court. The lat- Moderne," published in Paris; also a publiter court found from the new evidence the cation which appeared in Germany in 1894 existence of a structure upon the nonexist- concerning a wall which is given the name of ence of which the Circuit Court of Appeals Bauzeitung wall. The article recites that a for the Sixth Circuit based its conclusion. "utility model patent" had been granted, The District Court said that Bone was not consisting "of a vertical and a horizontal the first to do the things he asserted he was member." the first to do, and that whatever the record in the Sixth Circuit might have shown, so far as the record before the court "was concerned, the absolute converse of that proposition" had "been demonstrated." The court, therefore, as we have said, dismissed the bill for want of equity. The decree was affirmed by the Circuit Court of Appeals; indeed, the reasoning of the District Court was approved after painstaking consideration of the patent and an estimate of the anticipatory defenses; none of which the court said was introduced in the Akron Case, "otherwise a different conclusion would have been reached," adducing the opinion of the court. 249 Fed. 214, 161 C. C. A. 247. This being so, and there is no doubt it is so, the present case is relieved of the authority or persuasion of the Akron Case and it becomes necessary to consider the prior art and decide the extent and effect of its anticipation. We have given a cross-section of the device If we may assign novelty to the Bone wall and consider it a broad advance upon the prior art [the extent of its advance, if any, we shall consider later], we may assign infringement of it by the Marion county wall. To an examination of the prior art we are therefore brought. It would be difficult to add anything to the consideration and comment of the Court of Appeals. The court cited in support of its judgment a patent issued to Francois Coignet in 18C9, and one issued to Stowell & Cunningham in 1899 upon an application made in 1897, and to articles written by P. *142 The Coignet patent is somewhat indefinite. It relates, according to its declaration, to "monolithic structures, or articles made of artificial stone paste" into which irregular shaped irons are introduced to be "arranged in such a manner as to interlace each other, so that by the combination of this metallic skeleton and of agglomerated artificial stone paste the thickness of the walls or size of the articles may be considerably reduced and yet great strength be attained." It will be observed that there is nothing explicit of how "stone paste" and the "irregular shaped irons" operate or co-operate, aside Their from their cohesion or interlacing. arrangement is not definite as the "metallic members" in the Bone patent are, so that there might be as in that patent, reinforcing metal in the heel of the wall acting with its upright portion serving the function, to quote Judge Day, "of a cantilever beam whereby the weight of the material pressing upon the heel is transferred to the upright of the wall and operates to retain the wall in a vertical position." If there was any prophecy (to borrow counsel's word) in it the world was slow to discern it, and we are not disposed to give much anticipating effect to it, a view in which we have confirmation in the disclaimer of Bone he conceding he was not the first to discover the art of reinforcing concrete. The Planat publications are more explicit. We there see a relation between the metallic and masonry parts of a wall and their cooperation to produce strength in the wall and resistance to the pressure of and bulging from the stress of earth behind it. Both articles the Court of Appeals said, "deal with retaining walls of reinforced concrete of the cantilever type" and quoted from the article of 1896 as follows: "These computations suppose that one has effectively realized the fixing of the vertical wall to the horizontal slab at their junction. This fixing requires special precautions. The bars at the point of junction exert a pulling force which tends to pull them out of the concrete. * * But here we have only a half beam on a cantilever span. It is necessary that the extremities of the bars in the region of fixation should be held in a sufficient mass of concrete or maintained by some other means. 143 "One is able to reduce these projections in bind together the vertical bars and the horizona very large measure, if one takes care to tal bars at their point of intersection. In this way the pull of the bar is carried, not only on its prolongation, arranged for anchorage, but |