an

HENRY A. M. SMITH, as Receiver of the, a petition for an injunction to restrain the

late Corporation Named and Styled “The treasurer from obeying the requirements of President, Directors, & Company of the

act (presently to be stated) of the State Bank," Plff. in Err.,

legislature of the state. The supreme court v. R. H. JENNINGS, as Treasurer of the State of the state dismissed the petition, and the

case is here on writ of error. of South Carolina.

The state of South Carolina issued, in Error to state court-Federal question-con- 1859, bonds due in twenty years in aid of

formity of state law to state Constitu- the Blue Ridge Railroad Company. The tion.

bank came to be the owner of one hundred 1. The conformity with the state Con- of these bonds, each of the par value of stitution of the proceedings of the state $1,000. In 1865 the assets of the bank, legislature in the enactment of a law is not including the hundred bonds, were seized and a Federal question, which will sustair a carried away by soldiers of the Federal writ of error from the Supreme Court of the United States to a state court, but is Army. Sixty-three of the bonds have been a question upon which the determination of recovered by the bank from time to time the state court is final. *

and have been paid or funded by the state Error to state court-Federal question-im- Thirty-seven of the bonds are still outpairing contract obligation.

standing, and nothing is known of them. 2. No Federal question respecting the In 1896 the general assembly of the state impairment of contract obligations which passed an act directing that no coupon bond will sustain a writ of error from the Su- of the state payable to bearer should be preme Court of the United States to a state funded or paid by the state treasurer after court is presented by the contention that the expiration of twenty years from the the obligation of the contract made by bonds of the state is impaired by a joint resolution date of maturity. In 1903 the general asof the state legislature directing the state sembly passed the following act: treasurer to write off of the books in his office “A Joint Resolution to Authorize and Recertain of such bonds, and to carry no longer quire the State Treasurer to Write off such bonds on the books as a debt of the the Books in His Office Certain Bonds state, since such law merely directed a

Entered on Said Books as Old Bonds, Not change of entries in the books of the treas

Fundable (Act of 1896), Blue Ridge Railurer, and could in no respect impair òr af

road Bonds, $37,000. fect the rights of the holders. †

“Be it resolved by the general assembly

of the state of South Carolina : [No. 104.]

“Section 1. That whereas, by the act of Argued April 24, 25, 1907. Decided May, the legislature of 1896, the treasurer of this

,
13, 1907.

state is forbidden to pay, consolidate, or

fund any coupon bond of the state after N ERROR to the Supreme Court of the the expiration of twenty years from the

State of South Carolina to review a judg- date of maturity of such bonds, and cerment denying an injunction to restrain the tain bonds entered on the books of the state treasurer from complying with the joint state treasurer as 'Old bonds, not fundable, resolution of the state legislature, directing act of 1896, Blue Ridge Railroad Bonds, $37,him to write certain state bonds off the 000,' are still carried on the books of the books in his office, and to carry no longer state treasurer. Therefore, be it resolved: such bonds on the books as a debt of the That the state treasurer be, and he is herestate. Dismissed for want of jurisdiction.

by, authorized and required to write said See same case below, 67 s. C. 324, 45 s. bonds off of the books in his office, and E. 821.

no longer carry said bonds on the books

as a debt of the state.” The facts are stated in the opinion. Messrs. T. W. Bacot, A. M. Lee, and Julian tion, alleging that the act last stated, if

Thereupon the receiver brought this petiMitchell, Jr., for plaintiff in error. Messrs. Charles A. Douglas and E. B. tract made by the bonds, and that the

valid, impaired the obligation of the conSherrill for defendant in error.

act was not passed in conformity with the

Constitution of the state, and was therefore Mr. Justice Moody delivered the opinion void. The prayer of the petition was that of the court:

the respondent be restrained by injunction The plaintiff in error is the receiver of “from writing the said $37,000 of the state a state bank of South Carolina which has bonds off the books in his office, and no been many years in liquidation. The de longer carrying said bonds on the books fendant in error is the treasurer of the as a debt of the state.” The supreme court state of South Carolina. The receiver of the state decided against both these conbrought in the supreme court of the state tentions, and they are brought here as Fed

*Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 1052. Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 1055.

IN

eral questions. But the conformity with a patent infringement suit to enjoin the the state Constitution of the proceedings in complainant in the prior suit from interthe enactment of the law is a question for fering with the former's business by suing the determination of the state court, and his customers for an alleged infringement its judgment is final. Burt v. Smith, 203

of the patent on account of the use or sale of

the same article passed upon in the prior U.S. 129, 135, 51 L. ed. 121, 27 Sup. Ct. Rep.

suit. 37; Montana ex rel. Haire v. Rice, 204 U. S. 291, 51 L. ed. 490, 27 Sup. Ct, Rep. 281.

[No. 196.] Nor did the law complained of impair the obligation of the state to pay the bɔnds Submitted January 28, 1907. Decided May therein mentioned, or the remedy to re

13, 1907. cover upon them. The obligation and the

NA remedy remained precisely the same after ON A CERTIFICATE from the United the enactment of the law as before. Nei

States Circuit Court of Appeals for the ther one was in the slightest degree dimin Seventh Circuit presenting questions reished or affected. The law merely directed specting the right of the successful defenda change of entries in the books of the ant in a patent infringement suit to prostate treasurer, and could by no possibility, restrain him from interfering with the forin any respect whatever, deny, obstruct, impair, or affect the rights of the plaintiff mer's business by suing his customers for in error.

This was the view expressed by an alleged infringement of the patent on the court below, and the statute, thus in account of the use or sale of the same ar

ticle passed upon in the prior suit. Anterpreted, raises no Federal question. Writ of error dismissed.

swered in favor of the right to maintain such suit.

V.

Statement by Mr. Justice Moody:

This case comes to this court from the WILLIAM F. KESSLER

circuit court of appeals for the seventh cir. GEORGE S. ELDRED.

cuit upon a certificate of that court of

questions of law concerning which it deJudgments-effect or conclusiveness.

sires instructions. Accompanying the cer1. A final decree of a Federal circuit tificate is a statement of facts. The statecourt in favor of defendant in a patent in- ment of the facts and the certificate of fringement suit entitles him to continue the questions of law are as follows: the business of manufacturing and selling Kessler, a citizen of Indiana, prior to 1898, throughout the United States the alleged had built up an extensive business in the infringing article, free from all interference manufacture and sale of electric cigar lightby the complainant by virtue of the patent

ers, and had customers throughout the alleged to have been infringed.

United States. Eldred, a citizen of Illinois, Judgments-effect or conclusiveness.

2. Defendant's rights under a final de- and an inhabitant of the northern district, cree in his favor rendered by a Federal cir- was the owner of patent No. 492,913, issued cuit court in a patent infringement suit are to Chambers on March 7, 1893, for an elecviolated by the action of the complainant tric lamp lighter. Eldred was a competitor therein in thereafter filing a bill against of Kessler's and manufactured a similar one of the former's customers for an alleged form of lighter (entirely dissimilar from infringement of the patent on account of that described in the Chambers patent), so the use or sale of the same article passed that it was not a matter of much imporupon in the prior suit.

tance to customers which lighter they Estoppel-by conduct. 3. The assumption by the manufacturer bought. In 1898 Eldred began a suit against

a of the defense of a patent infringement Kessler in the district of Indiana for the insuit brought in a Federal circuit court fringement of the Chambers patent. The against one of his customers does not de bill alleged that Kessler's manufacture and prive him of his right to proceed against the sale of the Kessler lighter infringed all the complainant in such suit in the state and claims. The answer denied that Kessler's district of the latter's residence for wrong. lighter infringed any of the Chambers fully interfering with the business of such claims. On final hearing the circuit court manufacturer by instituting the suit after found for Kessler on the issue of nonina final adjudication in a prior suit that the article in question did not infringe the pat-tringement

and dismissed the bill. That deent.

cree was affirmed in 1900 by the circuit court Equity-adequate remedy at law.

of appeals for the seventh circuit. Eldred 4. Lack of any adequate remedy at law v. Kessler, 45 C. C. A. 454, 106 Fed. 509. justifies a court of equity in taking jurisdic

Subsequently, Eldred brought suit on tion of a suit by the successful defendant in the same patent in the northern district of New York against Kirkland, who was selling Third. Did Kessler's assumption of the dea similar lighter, but not of Kessler's make. fense of Eldred's suit against Breitwieser The circuit court found for Kirkland on deprive Kessler of the right, if that right the issue of noninfringement and dismissed would otherwise exist, of proceeding against the bill. The circuit court of appeals for Eldred in the state and district of his citthe second circuit reversed that decree and izenship and residence for wrongfully interheld the Kirkland lighter to be an infringe- fering with Kessler's business? ment. Eldred v. Kirkland, 64 C. C. A. 588, Fourth. If Eldred's acts were wrongful, 130 Fed. 342.

had Kessler an adequate remedy at law? In June, 1904, Eldred filed a bill for infringement of the same patent in the West- Messrs. Robert S. Taylor and Elwin M. ern district of New York against Breit- Hulse for Kessler. wieser, user of Kessler lighters, which were Messrs. Charles C. Linthicum and Louis identical with those held in Eldred v. Kess-K. Gillson for Eldred. ler, to be no infringement of the Chambers patent. Many of Kessler's customers were Mr. Justice Moody delivered the opinion intimidated by the Breitwieser suit, so that of the court: they ceased to send in further orders for The industry of counsel has not discovered lighters, and refused to pay their accounts any decision on the exact questions presentfor lighters already sold and delivered to ed by the certificate, and they agree that them. Kessler assumed the defense of the those questions are not settled by controlBreitwieser suit, and will be compelled, in ling authority: The decision of the case the proper discharge of his duty to his cus- turns upon the effect of the judgment in tomers, to assume the burden and expense the suit which Eldred brought against Kessof all suits which may be brought by El-ler. Both manufactured and sold electric cidred against other customers. In this state gar lighters. Eldred, being the owner of a of affairs Kessler, a citizen of Indiana, in patent issued to one Chambers for an elecJuly, 1904, filed a bill against Eldred in the tric lamp lighter, brought a suit against circuit court for the northern district of Kessler, in which it was alleged by the Illinois, the state and district of Eldred's plaintiff and denied by the defendant that citizenship and residence, to enjoin Eldred the cigar lighters manufactured by Kessler from prosecuting any suit in any court of infringed each and all of the claims of the the United States against anyone for al-Chambers patent. On the issue thus joined leged infringement of the Chambers patent there was final judgment for Kessler. This by purchase, use, or sale of any electric cigar judgment, whether it proceeds upon good lighter manufactured by Kessler and iden- reasons or upon bad reasons, whether it tical with the lighter in evidence before the was right or wrong, settled finally and circuit court for the district of Indiana and everywhere, and so far as Eldred, by virtue the circuit court of appeals for the seventh of his ownership of the Chambers patent, circuit in the trial and adjudication of the was concerned, that Kessler had the right suit of Eldred against Kessler. From an ad-to manufacture, use, and sell the electric verse decree by the circuit court Kessler per- cigar lighter before the court. The court, fected an appeal to this court.

having before it the respective rights and Upon the foregoing facts the questions of duties on the matter in question of the parlaw concerning which this court desires the ties to the litigation, conclusively decreed the instruction and advice of the Supreme Court right of Kessler to manufacture and sell his are these:

manufactures free from all interference from First. Did the decree in Kessler's favor, Eldred by virtue of the Chambers patent, rendered by the circuit court for the district and the corresponding duty of Eldred to recof Indiana in the suit of Eldred against ognize and yield to that right everywhere Kessler, have the effect of entitling Kessler and always. After this conclusive deterto continue the business of manufacturing mination of the respective rights and duties and selling throughout the United States of the parties, Eldred filed a bill for an inthe same lighter he had theretofore been fringement of the same patent against Breitmanufacturing and selling, without molesta- wieser, on account of his use of the same tion by Eldred, through the Chambers pat- kind of Kessler cigar lighter which had ent?

been passed on in the previous case, and Second. Did the decree mentioned in the Kessler has assumed the defense of that first question have the effect of making a suit. Whether the judgment between Kesssuit by Eldred against any customer of ler and Eldred is a bar to the suit of ElKessler's for alleged infringement of the dred v. Breitwieser, either because BreitChambers patent by use or sale of Kess- wieser was a privy to the original judgment, ler's lighters a wrongful interference by El- or because the articles themselves were, by dred with Kessler's business?

that judgment, freed from the control of

V.

that patent, we deem it unnecessary to in right which, by a judgment, has already quire. We need not stop to consider wheth- been declared to exist. If the suits are sucer the judgment in the case of Eldred v. cessful the result will be practically to deKessler had any other effect than to fix stroy Kessler's judgment right. Moreover unalterably the rights and duties of the though the impairment or destruction of immediate parties to it, for the reason that Kessler's right would certainly follow from only the rights and duties of those parties the course of conduct which Eldred has beare necessarily in question here. It may be gun, it would be difficult to prove, in an acthat the judgment in Eldred v. Kessler will tion at law, the extent of the damage innot afford Breitwieser, a customer of Kess-flicted. An action at law would be entirely ler, a defense to Eldred's suit against him. inadequate to protect fully Kessler's unUpon that question we express no opinion. questioned right, and, under these circumNeither it nor the case in which it is raised stances, though there may be no exact preceare before us. But the question here is dent, we think that the jurisdiction in equiwhether, by bringing a suit against one of ty exists. Nor do we see any good reason Kessler's customers, Eldred has violated the why Kessler's interposition for the defense right of Kessler. The effect which may rea- in the suit of Eldred v. Breitwieser debars sonably be anticipated of harassing the him from his remedy in equity. purchasers of Kessler's manufactures by It follows from the foregoing reasoning claims for damages on account of the use of that the first and second questions certithem would be to diminish Kessler's oppor-fied should be answered in the affirmative, tunities for sale. No one wishes to buy and the third and fourth in the negative, anything if with it he must buy a law suit. and it is so ordered. That the effect to be anticipated was the actual effect of the Breitwieser suit is shown by the statement of facts. Kessler's customers ceased to send orders for lighters, STATE OF WYOMING EX REL. WY. and even refused to pay for those which had

OMING AGRICULTURAL COLLEGE and

MATT BORLAND et al., Plffs. in Err., already been delivered. Any action which has such results is manifestly in violation

WILLIAM C. IRVINE, as Treasurer of the of the obligation of Eldred, and the cor

State of Wyoming. responding right of Kessler, established by the judgment. Leaving entirely out of view Colleges-publicaid-congressional grants any rights which Kessler's customers have and appropriations. or may have, it is Kessler's right that those No particular institutions are customers should, in respect of the articles titled to the grants and appropriations made before the court in the previous judgment, respectively by the act of July 2, 1862 (12 be let alone by Eldred, and it is Eldred's Stat. at L. 503, chap. 130), granting lands duty to let them alone. The judgment in or land scrip to the several states for the the previous case fails of the full effect endowment, support, and maintenance of at which the law attaches to it if this is not shall be to teach agriculture and the me

least one college, where the leading object If rights between litigants are once chanic arts, and by the act of August 30, established by the final judgment of a court 1890 (26 Stat. at L. 417, chap. 841, U. S. of competent jurisdiction those rights must Comp. Stat. 1901, p. 3214), appropriating anbe recognized in every way, and wherever nually certain sums to each state and terthe judgment is entitled to respect, by those ritory for the more complete endowment who are bound by it. Having, then, by vir- and maintenance of such colleges, but the tue of the judgment, the right to sell his states take the property, charged with the wares freely, without hindrance from Eldred, duty to devote it to the purposes named. must Kessler stand by and see that right

[No. 272.] violated, and then bring an action at law for the resulting damage, or may he prevent the Argued April 19, 22, 1907. Decided May 13, infliction of the unlawful injury by proceed

1907. ings in personam in equity? If Eldred suc

N , he will bring suits

of Wyoming to review a judgment against others. He may bring suits against sustaining a demurrer to a petition for a others, whether he succeeds in one suit or writ of mandamus to compel the state treasnot. There may be, and there is likely to urer to pay to the treasurer of Wyoming be, a mutiplicity of suits. It is certain that Agricultural College certain funds in his such suits, if unsuccessful, would, at the hands, the proceeds of land grants and the same time, tend to diminish Kessler's sales, amount of appropriations made by Congress and to impose upon him the expense of de- for the promotion of education in agriculfending many suits in order to maintain the I ture and mechanic arts. Affirmed.

80.

ceeds min his suit against one of Kessler's I Stereo Rol Rutoo thin e Supreme Court of the

See same case below, 14 Wyo. 318, 84 Pac. science, and of the arts. ,

The col90.

lege, or the department of the arts, shall

embrace courses of instruction in the pracStatement by Mr. Justice Moody:

tical and fine arts, especially in the applicaThe plaintiff in error the state of Wy- tion of science to the arts of mining and oming, on the relation of the Wyoming Ag. metallurgy, mechanics, engineering, archiricultural College and its officers, filed a pe- tecture, agriculture, and commerce, together tition in the supreme court of that state for with instruction in military tactics."

. a writ of mandamus against the defendant Land grants and appropriations, which in error, the state treasurer. The object of presently will be described in detail, have the proceeding was to compel the state been made by Congress for the support of treasurer to pay to the treasurer of the col-education in the state, and the state, actlege certain funds in his hands, being the ing through its legislature, has accepted the proceeds of land grants and the amount of appropriations under the conditions preappropriations made by Congress for the scribed in the acts of Congress, and has appromotion of education in agricultural and propriated these national bounties to the mechanical arts. An alternative writ is support of the university. The agricultural sued, and the respondent appeared and de- college claimed that, under the acts of Conmurred to the petition. The cause was then gress bestowing these gifts, it is entitled to heard by the supreme court of Wyoming, them, and the denial of the supreme court

, and by that court the demurrer, which was of the state of this claim raises the Fedregarded by court and counsel as sufficient. eral question first to be considered. ly raising the merits of the controversy, was. By the act of July 2, 1862 (12 Stat. at L. sustained and judgment rendered for the re- 503, chap. 130), amended by act of March spondent. The case comes here upon writ 3, 1883 (22 Stat. at L. 484, chap. 102, U. S. of error, with allegations of violations of Comp. Stat. 1901, p. 3212), Congress "granted Federal rights, which, so far as material to to the several states, for the purposes herethe decision, are stated in the opinion. inafter mentioned,” certain quantities of the

public lands, or, under certain conditions, Messrs. Porter B. Coolidge, Fenimore Chat. in lieu thereof land scrip. The entire proterton. Samuel T. Corn, and A. E. L. Leckie ceeds of the sale of the land or of the land for plaintiffs in error.

scrip were directed to be safely invested by Messrs. Timothy F. Burke, W. E. Mullen, the states as a perpetual fund, whose interNellis Corthell, Charles W. Burdick, and est should be "inviolably appropriated by John W. Lacey for defendant in error. each state which may take and claim the

benefit of this act, to the endowment, supMr. Justice Moody delivered the opinion port, and maintenance of at least one colof the court:

lege, where the leading object shall be, The Wyoming Agricultural College was without excluding other scientific and clasestablished by an act of the legislature of sical studies, and including military tactics, that state. Wyo. Sess. Laws 1890, 1891, to teach such branches of learning as are chap. 92. It was declared to be “a state related to agriculture and the mechanic arts, public educational institution,” with the in such manner as the legislatures of the object of giving to men and women, without states may respectively prescribe, in order regard to color, “a liberal education and a to promote the liberal and practical educa- ' thorough knowledge of such arts and tion of the industrial classes in the several sciences as will aid in the prosecution of pursuits and professions in life.” The act agricultural pursuits, with their varied ap- further provided that "if any portion of the plications."

fund invested. . be... lost, it The University of Wyoming was estab- shall be replaced by the state to which it belished by the territory with the declared ob- longs;" and that "no state, while in a condiject of providing education for both sexestion of rebellion or insurrection against the in "the different branches of literature, the government of the United States, shall be arts and sciences, with their varied applica- entitled to the benefit of this act. No state tions." The Constitution of the state of shall be entitled to the benefits of this act Wyoming confirmed the establishment of the unless it shall express its acceptance thereuniversity and declared it to be the uni- of by its legislature." versity of the state of Wyoming. The first The grant made in this statute is clearly session of the state legislature enacted a to the state, and not to any institution eslaw declaring more fully the objects of the tablished by the state. Montana ex rel. university, which provided, among other Haire v. Rice, 204 U. S. 291, 51 L. ed. 49), things, that it should be open to both sexes, 27 Sup. Ct. Rep. 281. regardless of race or color, and should "em- By the act of August 30, 1890 (26 Stat. brace colleges or departments of letters, of lat L. 417, chap. 841, U. S. Comp. Stat. 1901,