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utes and rules the defendant is obliged to employ the plaintiff so long as he is ready and able to perform the labor for which he was employed, until he shall have been discharged in the manner provided by the statute. The defendant does not deny that the statutes are now in full force, or that both the statutes and the rules of the civil service commissioners made under their authority are to be resorted to to ascertain the rights of the plaintiff; nor does the defendant now claim that it had the right to discharge the plaintiff in March, 1903, for the reason then assigned. "Any laborer suspended and not actually employed in the department in which he is enrolled shall at the end of six months be deemed to be out of the service, and shall not be thereafter employed, except after registration and certification by the commissioners; and the employing officer shall forthwith report to the commissioners the name of any laborer so suspended: provided, however, that this provision shall not apply to veterans." Rules of the Civil Service Commissioners, rule 47. The defendant contends, however, that section 23 already cited does not apply to labor service; that the labor service is regulated by section 24; that the effect of the statutes taken together is to draw a distinction between the official classified public service and the labor service of the commonwealth and its cities or towns. The defendant's argument is that the provisions of the statute to be considered here are contained in Rev. Laws, c. 19, §§ 20-24, inclusive. Of these sections, section 20 defines the word veteran. Section 21 allows a veteran to apply for examination under the rules, and gives him a preference over other applicants; and it is claimed that this section cannot be made applicable to labor service, for which he is not to be examined. Section 23, which has been quoted above, provides in terms for "the public service." Section 24 is to the effect that the rules of the civil service commissioners "shall provide for the employment of veterans in the labor service of the commonwealth and of the cities and towns thereof." And the defendant insists that the change of language from the words "public service" to "labor service" is upon its face significant of the intention of the Legislature to make the distinction contended for.
The original provision for the examination of applicants for appointment or employment under public authority was made by St. 1884, p. 346, c. 320. Section 16 of this chapter provided that "the examination of applicants for appointment or employment as laborers shall relate to their capacity for labor, their habits as to industry and sobriety, and the necessities of themselves and their families." 1887, veterans of the War of the Rebellion were given a preference in "appointment to office or employment in the service of the commonwealth or the cities thereof," without passing any examination under the act of
1884. St. 1887, p. 1099, c. 437. St. 1889, p. 1224, c. 473, applied to "all cases of certification for appointment of examined persons," and provided that the veterans should be appointed in preference to other persons who had not a higher standing on the eligible list. St. 1894, p. 671, c. 519, forbade the removal or suspension of any veteran who held "an office or position in the civil service of any city in the commonwealth" except in the manner therein provided. St. 1895, p. 618, c. 501, seems to have been intended chiefly to give to veterans an absolute preference in the public service, without any distinction between the right to appointment to office and employment in labor service. But in Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357, it was held that sections 2 that sections 2 and 6 of this statute, so far as they gave to veterans peculiar and exclusive privileges distinct from those of the community in obtaining public office, were unconstitutional, although it was intimated in the opinion that perhaps a different rule might be applied to cases of mere employment for the rendition of services which did not constitute the employé a public officer. The Legislature then enacted St. 1896, p. 534, c. 517, embodying and repealing many of the previous acts, and containing substantially the provisions now set forth in Rev. Laws, c. 19, §§ 20-24. The sixth section of the act of 1896 provided that the civil service commissioners should establish "rules to secure the employment of veterans in the labor service of the commonweath and of the cities and towns thereof, in the class for which they make applications, in preference to all other persons except women." See now Rev. Laws, c. 19, § 24.
If the distinction for which the defendant contends had any existence in our legislation, it was created by the statute just cited. But we have not found it necessary to determine this question; for we are of opinion that whether or not there is any difference between the plaintiff's rights and those of one employed in the classified public service, and whether or not there is any difference between the different branches of the public service, as to which questions we express no opinion, the exceptions in this action must be sustained. We see no valid distinction. at least as to the right to continued employment, between the case of a veteran who has been duly registered, certified and employed in the labor service of a city or town and the case of a veteran who has been duly examined, registered and employed as a public officer. See Johnson v. Kimball, 170 Mass. 58, 48 N. E. 1020. The Legislature intended to provide as much in the former case as in the latter for the continuous employment of a veteran as long as he was able to do the work for which he was employed and the occasion for the work continued. The manifest purpose of the statute was to secure the employment of veterans in the labor service of
the commonwealth and its cities and towns | pays the salary. See Phillips v. Boston, 150 in preference to all other persons except women, if the veterans are competent to perform the labor; and it was within the power of the Legislature to make this preference. Opinion of the Justices, 166 Mass. 589, 44 N. E. 625, 34 L. R. A. 58. And see Shaw v. Marshalltown (Iowa) 104 N. W. 1121; Sullivan v. Gilroy, 55 IIun, 285, 8 N. Y. Supp. 401; People v. Grout (Sup.) 90 N. Y. Supp. 122. The statute makes it the duty of the civil service commissioners to establish rules to accomplish this purpose; and these rules, when duly approved, have the force of law. Attorney General v. Trehy, 178 Mass. 186, 188, 59 N. E. 659; Rev. Laws, c. 19, § 7. In pursuance of the duty thus imposed upon them the commissioners have provided by rules duly approved that "when laborers are required the employing officer shall make requisition upon the commissioners, stating the number of men wanted, the precise nature of the labor in which they are to be employed, and the time and place of employment. Upon such notice the commissioners shall certify the names of any and all veterans upon the eligible list, and the employment shall be made from the list so certified." Rule 44. And again it is provided by rule 45, that "the selection and employment shall be made from the list so certified; and the employing officer shall, before selecting or employing any other person, first employ from the list of veterans certified." In view of the language of these rules and of the fact that they were passed under a statute which made it obligatory upon the commissioners to establish rules giving to veterans a preference in the labor service, they must be so construed as to accomplish that purpose and to give to the plaintiff the right to continuous employment in preference to those laborers who were not veterans, so long as there was work to be done of the kind for which he was employed, and as he was competent to perform that work.
But the defendant claims that even if this be the case, yet the plaintiff had no contract with the city, was not employed for any definite time or at any fixed rate of pay or salary, and so cannot maintain an action to recover wages for work that he has not performed. Chase v. Lowell, 7 Gray, 33; Knowles v. Boston, 12 Gray, 339; Donaghy v. Macy, 167 Mass. 178, 45 N. E. 87; Malcolm v. Boston, 173 Mass. 312, 53 N. E. 812; Love v. Jersey City, 40 N. J. Law, 456; Conner v. Mayor and Alderman of New York, 5 N. Y. 235. The argument is that a public officer cannot maintain an action for his salary unless he actually has exercised the office, especially if the salary has been paid to a de facto officer, and that he must at any rate establish his right by mandamus before he can be given any pecuniary relief, either against the person who has wrongfully held the office or against the city or town which
Mass. 491, 493, 23 N. E. 202. There are many decisions in other states in which this doctrine has been upheld, and there are also strong decisions to the contrary. Farrell v. Bridgeport, 45 Conn. 191; Conner v. Mayor and Aldermen of New York, 5 N. Y. 285; Hadley v. Mayor and Aldermen of Albany, 33 N. Y. 603, 88 Am. Dec. 412; Smith v. Mayor, etc., of New York, 37 N. Y. 518; Dolan v. Mayor and Aldermen of New York, 68 N. Y. 274, 23 Am. Rep. 168; Kennedy v. Mayor and Aldermen of New York, 79 N. Y. 361; McVeany v. Mayor and Aldermen of New York, 80 N. Y. 185, 36 Am. Rep. 600; Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730; Gregory v. Mayor and Aldermen of New York, 113 N. Y. 416, 21 N. E. 119, 3 L. R. A. 854; Hagan v. Brooklyn, 126 N. Y. 643, 27 N. E. 265; Martin v. New York, 176 N. Y. 371, 68 N. E. 640; Grieb v. Syracuse, 94 App. Div. 133, 87 N. Y. Supp. 1083; Schuyler v. New York, 95 App. Div. 305, 88 N. Y. Supp. 646; McDonald v. Newark, 58 N. J. Law, 12, 32 Atl. 384; Luzerne County v. Trimmer, 95 Pa. 97; Hines v. District of Columbia, MacArthur & M. 141; Frazier v. Virginia Military Institute, 81 Va. 59; Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; Saline County v. Anderson, 20 Kan. 298, 27 Am. Rep. 171; Selby v. Portland, 14 Or. 243, 12 Pac. 377, 58 Am. Rep. 307; Hunter v. Chandler, 45 Mo. 452; Sheridan v. St. Louis, 183 Mo. 25, 81 S. W. 1032; Wheatly v. Covington, 11 Bush (Ky.) 18, Gorley v. Louisville, 108 Ky. 789, 55 S. W. 886; Baxter v. Brooks, 29 Ark. 173; Michel v. New Orleans, 32 La. Ann. 1094; Scott v. Crump, 106 Mich. 288, 64 N. W. 1, 58 Am. St. Rep. 478; Stadler v. Detroit, 13 Mich. 346; Shaw v. Macon, 19 Ga. 468; Mayor v. Hays, 25 Ga. 590; Brunswick v. Fahm, 60 Ga. 109; Dorsey v. Smyth, 28 Cal. 21; Carroll v. Siebenthaler, 37 Cal. 193; Meredith v. Sacramento, 50 Cal. 433; Bastrop County v. Hearn, 70 Tex. 563, 8 S. W. 302; Kendall v. Raybould, 13 Utah, 226, 44 Pac. 1034; Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280. But the case at bar differs from these decisions. The plaintiff was not the holder of a public office which had been usurped by another who was readily to be identified, and against whom a complete remedy was available. He was a laborer, a member of a gang. It ordinarily would be difficult and frequently impossible to identify the laborer who was doing the work that ought to have been given to the plaintiff. If he could identify the particular person who had been employed in his stead, it would be practically a denial of justice to say that his only remedy was by a suit for damages against another laborer who presumably would have no means to satisfy a judgment. Such a limitation has been made in the case
of public officers, to whom it usually could be applied without injustice; but we have found no decision in which it has been extended to such a case as this, and in our opinion it ought not to be so extended. Houston v. Estes, 35 Tex. Civ. App. 99, 79 S. W. 848; Houston v. Clark (Tex. Civ. App.) 80 S. W. 1198.
Nor can it be said that there was no contract between the parties. Dolan v. Orange, 70 N. J. Law, 106, 56 Atl. 130; Farwell v. Rockland, 62 Me. 296. The contract of employment must be deemed to have been made in view of the statutes regulating the employment of laborers by towns and cities. The statutes and the rules of the civil service commissioners entered into the contract and constituted a part of the terms of his employment. For any breach of these terms of employment he may recover in an action of contract. This point was expressly decided in United States v. Wickersham (U. S. Supreme Court, April 2, 1906) 26 Sup. Ct. 469, 50 L. Ed. 798, citing Emmitt v. N. Y., 128 N. Y. 117, 28 N. E. 19, and Lellmann v. United States, 37 Ct. Cl. 128.
We do not mean to intimate that the plaintiff is necessarily entitled to recover the full amount which he has claimed. There was evidence that, for a part of the time at least during which work was refused him, he acquiesced in the refusal, and that at other times there was no work to be done such as he had been employed for and was able to perform. Norton v. Brookline, 181 Mass, 360, 63 N. E. 930; Clark v. Boston, 179 Mass. 409, 60 N. E. 793. The only liability of the city is for not having given him the preference over others, not veterans, to which he was entitled while there was such work to be done. If, as the jury might have found on the evidence, the city failed to do this, then he was entitled to recover; and, as in the ordinary case of breach of a contract of employment, the measure of damages would be determined by the pay he would have earned, less what he earned, or in the exercise of proper diligence might have earned, elsewhere. The fact that the statute imposes a penalty for any breach of its provisions (Rev. Laws, c. 19, § 35) does not deprive the plaintiff of its civil remedy. Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450. The case should have been submitted to the jury. Exceptions sustained.
(192 Mass. 386)
KANE V. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)
NEGLIGENCE CONTRIBUTORY NEGLIGENCEIMPUTED NEGLIGENCE-DRIVER OF VEHICLE. In an action for personal injuries to plaintiff while riding on a pung near a railroad track, he is not entitled to recover, if either his own negligence or that of the driver of the pung contributed to the happening of the accident.
[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 147-150.]
Exceptions from Superior Court, Suffolk County; Wm. Cushing Wait, Judge.
Action by one Kane against the Boston Elevated Railway Company for personal injuries. Verdict for defendant, and plaintiff excepts. Exceptions overruled.
Malachi L. Jennings, for plaintiff. R. A. Sears and John E. Hannigan, for defendant.
SHELDON, J. There is no occasion to go over the evidence in this case in detail. It could lead to no other conclusion than that the driver of the pung in which the plaintiff was sitting drove so near the defendant's tracks as to cause the plaintiff's knees to strike against the car which was passing in the opposite direction. Under the circumstances of this case the plaintiff cannot recover if either his own negligence or that of the driver contributed to the happening of the accident. Evensen v. Lexington & Boston Street Railway, 187 Mass. 77, 78, 72 N. E. 355; Yarnold v. Bowers, 186 Mass. 396, 398, 71 N. E. 799, and cases there cited. Even if there had been evidence of any negligence in the management of the defendant's car, yet it could not be said that such negligence was the cause of the accident. The plaintiff himself testified that the trouble was that the driver of the pung drove too near the tracks and that even if the car had stopped the driver of the pung would have driven him (the plaintiff) against the car; and there was no other testimony in the case inconsistent with this. The circumstances are not like those disclosed in Aiken v. Holyoke Street Railway, 180 Mass. 8, 12, 13, 61 N. E. 557. The verdict for the defendant was rightly ordered.
(192 Mass. 434) ABERTHAW CONST. CO. v. RANSOME. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1906.)
1. PATENTS INFRINGEMENT-ACTION - EVIDENCE.
Even if the assignor of a patent be estopped as against the assignee to deny its validity, it is open to him in a suit for infringement to show the prior state of the art as bearing on the construction and scope of the patent, and to show that the acts alleged are not violations. [Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Patents, § 452.]
2. Courts—UNITED STATES Courts—JuriSDICTION-INFRINGEMENT OF PATENTS.
The federal courts have exclusive jurisdiction of a suit for infringement of patent, whether brought against the original patentee or any other party.
[Ed. Note.-For cases in point, see vol. 13. Cent. Dig. Courts, § 1327.]
3. CORPORATIONS-STOCKHOLDERS-LIABILITY FOR BREACH OF CONTRACT BY CORPORATIONINJUNCTION.
An action cannot be maintained against an individual to restrain violation of a contract of assignment of patent rights, entered into between plaintiff and a corporation, though the defendant is in control of the corporation.
[Ed. Note.-For cases in point, see vol. 12, Cent. Dig. Corporations, & 861.]
4. EQUITY-JURISDICTION-FALSE REPRESENTATIONS SLANDER OF TITLE-INJUNCTION. The jurisdiction of equity does not extend to a suit for false representations as to the validity of a patent owned by the plaintiff, nor as to his title thereto, which involve no breach of trust or contract.
[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, § 86; vol. 27, Cent. Dig. Injunction, § 171.]
Case Reserved from Supreme Judicial Court, Suffolk County.
Bill by Aberthaw Construction Company against one Ransome. Case reserved from Supreme Judicial Court. Bill dismissed.
Weld A. Rollins, for complainant George R. Nutter, Joseph O. Proctor, Jr., and Brandeis, Dunbar & Nutter, for defendant.
HAMMOND, J. This case is before us upon a reservation upon the bill and answer. The material allegations of the bill may be summarized as follows:
The respondent is the inventor and patentee of a "new and useful building material of concrete or similar substance and cold twisted metal bars imbedded therein combined." In February, 1896, he assigned onehalf interest in the letters patent to one Smith, and subsequently he and Smith each assigned his interest to the Ransome & Smith Company, a California corporation, so that the latter became the sole holder of the patent. In March, 1896, this company, subject to certain exceptions not here material, assigned to the plaintiff, "its assigns and legal representatives an exclusive right, title and ownership to said letters patent to make, use, and sell or practice the inventions the subject matter of" said letters patent "in and throughout the states of Maine, Massachusetts and Rhode Island," and subsequently, in the same month, made to the plaintiff a similar assignment as to the state of Connecticut. Both these assignments were executed by the Ransome & Smith Company by the defendant, its president.
In January, 1900, the Ransome Concrete Company, a New Jersey corporation, entered into a contract with the plaintiff which, after reciting that the said Aberthaw Construction Company was entitled to the rights under said letters patent in the states of Maine, Massachusetts, Rhode Island, and Connecticut, and that the Ransome Concrete Company was the owner of the rights under said letters patent for various other territories in the United States, including Vermont and New Hampshire, but not including Maine, Massachusetts, Rhode Island and Connecticut, "granted to the Aberthaw Construction Company the exclusive rights to the use of the aforesaid letters patent in the States of Vermont and New Hampshire, and further provided that the said Ransome Concrete Company should aid the said Aberthaw Construction Company in every way possible in its power to extend its business, and would refer any and all opportunities presented to the
said Ransome Concrete Company for construction under the 'Ransome' system in the aforesaid territory to said Aberthaw Construction Company, together with any information which might be helpful in obtaining such business."
Ransome at the time of the assignments by the Ransome & Smith Company owned a large amount of the capital stock of the company, and was and ever since has been "the dominant factor therein," and still controls and dictates its policy; and substantially the same allegations are made as to the relations between him and the Ransome Concrete Company, and also between him and another corporation called the Ransome Concrete Machinery Company.
The plaintiff ever since the said assignments to it "has been the owner of the exclusive right to make, use and vend the material and invention covered by said letters patent within" the six New England states, and as such owner has carried on the business and derived great profits therefrom. These letters patents were acquiesced in by the inhabitants within the territory mentioned, and no infringement has taken place within that territory until the acts complained of.
Ransome, by various advertisements and otherwise, has interfered with the plaintiff's rights by representing that the Ransome Concrete Machinery Company is ready to sell "Ransome's Improved Twisted Steel," "in all sizes and lengths, at short notice"; and also by representing to parties desiring the patented material that the patent is invalid and worthless. In this and other ways he has induced parties (several instances being specifically set forth in the bill) to buy of the Ransome Concrete Machinery Company, and to use in said States "said material covered by said letters patent."
The bill further alleges that Ransome has done the acts complained of in pursuance of a fraudulent design to defraud the plaintiff "out of the profits of that which he had himself sold or caused to be sold to the" plaintiff; and that by reason of such acts and doings the plaintiff's "legitimate monopoly under said patent is being broken in upon and destroyed"; that Ransome "is causing to spread through [New England]
the belief that the patent *** is invalid, and that any one may make, use and sell said patent invention with impunity, and that the [plaintiff] * * * will be powerless to prevent them"; all to the great damage of the plaintiff. It is further alleged that "at the date of the conveyances set out in * [the bill] * * and also at the time of the acts complained of, and also at the time of bringing" the bill, Ransome was an officer, director and agent of the Ransome & Smith Company, Ransome Concrete Machinery Company, and the Ransome Concrete Company.
By an amendment to the bill it is farther alleged that Ransome caused the Ransome &
Smith Company to participate in all the acts complained of, and further that in two separate instances therein particularly set forth, one in Massachusetts and the other in Connecticut, he caused the last named company to interfere with the plaintiff's business; in the Massachusetts case by furnishing to certain persons "cold twisted steel" and superintendence in combining this steel with concrete, "which combination is the subject matter of this patent"; and in the Connecticut case by bidding for the sale of such steel with the intention of competing with the plaintiff, whereby the plaintiff had to sell to the party desiring the steel at a less price than it otherwise could have obtained.
The bill further alleges that in these and many other ways the defendant has done or caused to be done many things tending to defeat his own grant to the plaintiff; and it alleges that it is against equity and good conscience "for * * said Ransome, being the inventor, assignor and dominant power in the assigning and competing companies, as aforesaid, and being a dominant factor in the Ransome Concrete Company, which has contracted to aid * * * [the plaintiff] * * * in securing business under said patent and otherwise, to endeavor by means of advertisements, slander of title, assurances, bonds of indemnity, personal services, and competition in general, to divert into his own pocket the profits which would naturally go to the ** * [plaintiff] * * * and to render worthless said letters patent sold by him and now owned by the" plaintiff. It is further alleged on belief that the defendant intends to continue his unlawful acts as aforesaid within the New England states.
The prayers are for an injunction restraining the defendant "his agents, servants, and attorneys, from advertising, or causing it to be advertised, that he or any of the companies aforesaid can or will within the [New England States] * * * make or cause to be made, use or cause to be used, sell or cause to be sold, the aforesaid material covered by said patent"; and also that the defendant be enjoined "from personally competing with the * * * [plaintiff] ** in the manufacture, use and sale of said patended material within * [the
New England states] *** and from causing the companies dominated by him from competing as aforesaid"; and further, that the defendant, "his agents, servants and attorneys * * * be enjoined from representing, assuring, or hinting to any person or corporation that said patent is invalid, doubtful or uncertain, and from stating to any such persons or corporations reasons or facts leading to that conclusion." There is also a prayer for the assessment of damages, and one for general relief.
The defendant demurs because, first, the bill shows no case for equitable relief; second, there is a plain, complete and adequate
remedy at law; third, the bill is multifarious; fourth, because the acts were the acts of corporations and it does not appear that the defendant is an agent or officer of any of the corporations, or that the acts are acts for which the defendant is responsible; fifth, it is a suit arising under the patent or copyright laws of the United States and the State court has no jurisdiction; and sixth, the corporations are not made parties.
In other words, the bill charges the defendant with interfering with the patent rights of the plaintiff by competing with the plaintiff and slandering its title, and the prayer is that the defendant may be enjoined from such acts.
1. As to the alleged acts of infringement. Even if it be assumed that inasmuch as the defendant is the inventor and patentee, he is estopped, as against the plaintiff whose rights come from him by mesne assignments, to deny the validity of the patent (Chambers v. Crichley, 33 Beav. 374; Robinson on Patents, §§ 767, 787. See, also, cases cited in 22 Am. & Eng. Encyc. of Law [2d Ed.] 429), still it is open to the defendant to show the prior state of the art as bearing upon the construction and scope of the patent, and to show that the acts alleged are not violations. Babcock v. Clarkson, 63 Fed. 607, 11 C. C. A. 351. Moreover, a suit for an infringement, whether brought against the original patentee or any other party, involves an inquiry into the scope and nature of the patent. Over such a suit the federal courts have exclusive jurisdiction. Rev. St. U. S. (2d Ed.) § 711, el. 5. [U. S. Comp. St. 1901, p. 578]. See, also, cases cited in 22 Am. & Eng. Encyc. of Law (2d Ed.) pp. 479, 480; Dudley v. Mayhew, 3 N. Y. 9.
Nor can the bill be maintained as a violation of the contract between the plaintiff and the Ransome Concrete Company. The defendant was not a party to that contract.
2. As to the alleged slander of title. The jurisdiction of equity does not extend to false representations as to character and quality of plaintiff's property nor as to his title thereto which involve no breach of trust or contract. Hence the bill cannot be sustained upon the ground of the alleged slander of title. Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310.
3. It is alleged that the defendant is the dominant factor of various corporations named in the bill, and therefore can be held answerable for their acts. So far as those acts however are alleged to be infringements of the patent, we have no jurisdiction, as above stated. So far as such acts are in violation of contracts, to reach the defendant it is necessary to disregard the entity corporation of the entity and treat the defendant as the real party in all these transactions. It is not alleged that the defendant was the owner of all the capital stock in all of these companies or any one of them, nor is it even alleged that he owned a majority of the