courses, rivers, bay, inlet, street, highway, turnpike, or canal within Mississippi, subject, however, to the condition that "the said company shall preserce any water-course, street, highway, turnpike, or canal which its said railroad may so pass upon, along, intersect, touch, or cross, so as not to impair its usefulness to the public unnecessarily; or, if temporarily impaired in and during the construction of said railroad, the said company shall restore the same to its former state, or to such state that its usefulness and convenience to the public shall not be unnecessarily or materially impaired or injured."

But that part of the act which has special reference to the issues in this case, and upon the construction and effect of which depend the rights of the parties, is given in the statement preceding this opinion. It will be observed that reference is made to "the central portion of the channel of the Pearl river," and also to the "principal entrance of Pearl river into the Rigolet." It was not disputed in argument that two distinct localities are here described. Pearl river is about 375 miles in length. It rises in the center of Mississippi, and is navigable by small craft, in good stages of water, as far as Jackson, the capital of the state. Running southwardly, it empties by one of its mouths into Lake Borgne, and by other mouths into the Rigolet-commonly called the Great Rigolet. The main or eastern branch of the Pearl, emptying into Lake Borgne, constitutes, for about 100 miles above its mouth to the 31st deg. of north latitude, the dividing line between Mississippi and Louisiana. 3 St. 348. The other branch, constituting a water-way between the main river and the Great Rigolet, is wholly within the state of Louisiana. It is clear that the words "in the central portion of the channel of the Pearl river" have reference to the main or eastern branch, which constitutes the dividing line between Mississippi and Louisiana, and consequently that it was in the channel of that branch (if the road was located across it) that the company was required to construct and maintain a draw-bridge, giving a clear space of not less than 60 feet in width.

:

But the company's contention is that the legislature of Mississippi intended to relieve it from all obligation to construct a draw-bridge in that branch of Pearl river, upon its locating the road at some point "south of or below the principal entrance of Pearl river" into the Great Rigolet; this, because, in that contingency, the act expressly declares that the company "shall not be required to construct a draw-bridge across any bayou leading into Pearl river, or across any small pass or mouth of said river." This construction of the statute necessarily implies that the legislature of Mississippi-although carefully providing that the water-courses and other highways of the state, across which the road was constructed, should be preserved against material or permanent impairment of their usefulness to the public-was willing, in consideration merely of the road being located in Louisiana south of or below the principal entrance of the Pearl river into the Great Rigolet, to have the mouth of the main or eastern branch of that river closed entirely against vessels engaged in commerce. We say "closed entirely," because the position of the company is that the present draw-bridge was constructed by it voluntarily, and without any legal obligation whatever to do so; and that it has the right, consistently with the restrictions imposed upon it by the Mississippi act, to span Pearl river with a bridge having no draw, and, consequently, with a bridge that would wholly prevent vessels passing from Lake Borgne into Pearl river, or from Pearl river into Lake Borgne.

There is just enough in the peculiar and confused wording of the Mississippi statute to furnish plausible ground for such a construction of its provisions. But we are satisfied that the state did not intend to put it in the power of the railroad company to destroy, for all purposes of navigation, that branch of Pearl river which empties into Lake Borgne. There is no ground to infer from the words of the act that a draw-bridge of the kind indicated "in the central portion of the channel of Pearl river" was deemed of

any less consequence than like draw-bridges in the Bay of St. Louis, the Bay of Biloxi, and East Pascagoula river. By language almost too clear to require construction, it was made a condition of the exercise within Mississippi of the corporate privileges and franchises of the company that it should construct and maintain in each of those water-ways across which its road might be located, a draw-bridge which when open would give a clear space of not less than 60 feet in width. This construction finds strong support in the clause immediately succeeding that which refers to the possible location of the road at a point south of the principal entrance of the Pearl river into the Great Rigolet. If the line of the road was located across the Pearl river at a point where it constitutes the dividing line between Mississippi and Louisiana, then the section, so far as it related to Pearl river, was not to take effect until Louisiana gave its assent, or the company built such a bridge across the Pearl river as was in accordance as well with that section as with the authority granted to the company by Louisiana; in which event "such drawbridge may be built in the center of the channel of said Pearl river, or in that portion of the same within the territory of the state of Louisiana, or of this state, as may be most convenient for public use." So far from the legis lature being willing to dispense with a draw 60 feet in width across the channel of Pearl river upon the location of the road south of the principal entrance of Pearl river into the Great Rigolet, it would seem that great care was taken to secure the assent of Louisiana to just such a bridge across Pearl river as the Mississippi act contemplated.

The error in the argument in behalf of the company is in assuming it to Le indisputably clear that the words "mouth of said river," in the clause or proviso relating to the location of the road south of the principal entrance of Pearl river into the Rigolet, refers to the mouth of that branch of Pearl river which empties into Lake Borgne. That construction of the words "mouth of said river" implies that there was some provision of the Mississippi act requiring the company to construct its draw-bridge at the junction between Pearl river and Lake Borgne. But no such provision is contained in the act. Had the road not been located south of the principal entrance of Pearl river into the Great Rigolet, the company could have constructed its draw-bridge in the channel of the main river at any point above its mouth on the line between Mississippi and Louisiana. We incline to the opinion that the words "mouth of said river" were intended to refer to one of the mouths of that branch of the Pearl emptying into the Great Rigolet. The Pearl formed, or was supposed to form, a junction with the Great Rigolet by more than one mouth. There is a principal entrance or mouth, or the Mississippi legislature supposed there was, and there is, or there was supposed to be, a small pass or small mouth of that branch of the Pearl in the same locality. If the road was located across the channel of the Great Rigolet south of, or below, the principal entrance of the Pearl river into the Great Rigolet, the water-way connecting Pearl river and the Great Rigolet would not be materially obstructed by the railroad bridge across the latter; and it would, consequently, not be vital to the people of Mississippi, interested in the navigation of the river, that draw-bridges should be constructed across bayous leading into Pearl river, in that locality, or across any small pass or [small] mouth of said river, near the line upon which the road was located. As the location of the road south of the principal entrance of Pearl river into the Rigolet would secure unobstructed navigation between the Great Rigolet and the main river, through that branch of Pearl river which empties into the Great Rigolet, the legislature of Mississippi was willing to declare that the construction and maintenance of draw-bridges across "any bayou leading into Pearl river, or across any small pass or [small] mouth of said river," was not a condition precedent to the exercise by the company within her limits of its corporate franchises and privileges. Such, we think, is the more reasonable construc

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tion of the clause in the Mississippi act upon which the company rests its claim of exemption from the duty to construct and maintain such a drawbridge as is described in the final judgment.

It was claimed in argument that the provisions of an act passed August 19, 1868, by the legislature of Louisiana, in reference to this railroad company, sustains the construction of the Mississippi act for which the railroad company contends. * So much of the Louisiana act as bears upon this point is also given in the statement preceding this opinion. If the provisions of the Louisiana act may be consulted in determining the construction of the statute of Mississippi, we do not perceive anything in them which should lead to a conclusion different from that already indicated. The slight difference in the phraseology of the two acts does not justify the belief that the Louisiana legislature contemplated that the railroad company might cross the Pearl river, on the boundary line between that state and Louisiana, by a bridge which contained no draw. When the Louisiana act provided that, upon the location of the road across the Great Rigolet, at a point south of the principal entrance of the Pearl river into the Great Rigolet, "the company shall only be required to construct one draw-bridge, which shall be in the channel of the Great Rigolet," it was not meant to dispense with the draw-bridge required to be maintained in the channel of the Pearl river at the point where the road crossed that stream on the dividing line between Louisiana and Mississippi. As already stated, the location of the road below the principal mouth by which the Pearl emptied into the Great Rigolet, secured navigation through that mouth, against obstruction; consequently, a draw-bridge would be unnecessary across other and smaller mouths by which the Pearl formed a junction with the Great Rigolet. To avoid the possibility of any one claiming that draw-bridges should be constructed over all the mouths of the Pearl, large and small, crossed by the road in the vicinity of its junction with the Great Rigolet, it was provided that in the event the road passed below the principal entrance of Pearl river into the Great Rigolet, only one draw-bridge need be maintained in that locality, and that one over the Great Rigolet.

One other point pressed upon our attention remains to be considered. By an act of congress approved March 2, 1868, (15 St. 38,) this railroad company was empowered and authorized to construct and maintain bridges over navigable waters of the United States on its route between New Orleans and Mobile. That act declared that the railroad and its bridges,*when constructed, completed, and in use in accordance with that act "and the laws of the several states through whose territory the same shall pass, shall be deemed, recognized, and known as lawful structures and a post-road, and are hereby declared as such." The same act declares, by way of proviso, that the company, in the construction of its bridges over and across the waters known as East Pascagoula, the Bay of Biloxi, the Bay of St. Louis, and the Great Rigolet, shall construct and maintain draw-bridges in the channels thereof, which, when open, shall give a clear space for the passage of vessels of not less than 80 feet in the channels of East Pascagoula river, of the Bay of Biloxi, and of the Bay of St. Louis, and of not less than 100 feet in the channel of the Great Rigolet. There is nothing in this legislation by congress which, expressly or by implication, diminishes, in any degree, the legal obligation of the railroad company to maintain such draw-bridge in the channel of the Pearl river, on the line between Mississippi and Louisiana, as is required by the laws of those states. Nor does the act of congress affect the authority of any court of competent jurisdiction, as to the parties, to compel the discharge of that obligation. While congress provided that the draw-bridges over the East Pascagoula river, the Bay of St. Louis, and the Bay of Biloxi should give a clear space of 80 rather than 60 feet in width for the passage of vessels, it did not dispense with the requirement in the statutes of Mississippi and Louisiana of a draw-bridge in the channel of Pearl river. Presumably, congress was of

opinion that a draw-bridge in that river, giving a clear space of 60 feet, was ample for all purposes of navigation. Hence, the act of March 2, 1868, made no specific reference to Pearl river. The duty imposed by the states upon the railroad company, in respect of a draw-bridge in Pearl river, was the same after, as it was before, the passage of the act of congress; for that act, in express words, declares the railroad and its bridges to be lawful structures and a post-road, "when constructed, completed, and in use" in accordance with the act of congress "and the laws of the several states through whose territory the same shall pass." Mississippi gave its consent to the exercise and enjoyment by this company of its corporate powers within her limits upon the condition, among others, that it should construct and maintain a drawbridge of a particular kind in the channel of Pearl river where that stream is crossed by the company's road. That condition not having been performed, the state has a right to ask the aid of the court in compelling its performance. And, in granting the relief asked, no right belonging to the company under the constitution or laws of the United States has been violated or withheld. Judgment affirmed.

(112 U. S. 50)

BUTTERWORTH, Commissioner, etc., v. UNITED STATES ex rel. HOE and others.

(November 3, 1884.)

1. MANDAMUS-PUBLIC OFFICER ACTING UNDER ORDERS OF SUPERIOR.

Mandamus will not lie to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do.

2. COMMISSIONER OF PATENTS-HIS JUDgment and DISCRETION TO REGULATE ISSSUE OF PATENTS.

"if

The judgment and discretion vested by the original patent law of 1790 in a majority of the three executive officers, the secretary of state, the secretary of war, and the attorney general, who were authorized to cause letters patent to issue, they shall deem the invention or discovery sufficiently useful and important," was transferred by the act of 1836, 27, to the commissioner of patents, it being made his duty to issue a patent for the invention, "if he shall deem it sufficiently useful and important.'

3. SAME HIS ACTS IN ISSUING Patent NOT SUBJECT TO REVIEW BY SECRETARY OF THE INTERIOR.

To whatever else supervision and direction on the part of the head of the interior department may extend, in respect to matters purely administrative and executive, they do not extend to a review of the action of the commissioner of patents in those cases in which he is by law appointed to exercise his discretion judicially.

In Error to the Supreme Court of the District of Columbia.

Sol. Gen. Phillips, for plaintiff in error. A. J. Willard, for defendant in

error.

MATTHEWS, J. * This is a writ of error prosecuted for the purpose of re-* viewing and reversing the judgment of the supreme court of the District of Columbia, awarding a peremptory mandamus commanding the plaintiff in error, the commissioner of patents, to receive the final fee of $20 tendered by the relators, and cause letters patent of the United States to R. Hoe & Co., as assignees of Gill, to be prepared and sealed, according to law, for a certain invention therein particularly described, and to be presented to the secretary of the interior for his signature. The facts upon which the controversy arises are shown by the record to be as follows: On March 12, 1881, Gill, one of the relators, made application in due form to the commissioner of patents for letters patent for certain new and useful improvements in printing machines, of which he claimed to be the original and first inventor. An interference was declared with an unexpired patent, No. 238,720, granted to Walter Scott, March 8, 1881. A hearing was had before the examiner of interferences, whe decided in favor of Scott, and, on appeal to the examiners in chief, that decision was affirmed. An appeal from that decision was taken by Gill to the

*52

$53

commissioner of patents, who decided that Gill was the original and first*`aventor of the improvements claimed, and was entitled to a patent therefor; and on June 4, 1883, adjudged that such patent should issue to the relators, composing the partnership of R. Hoe & Co., as assignees of Gill, the inventor. On June 14, 1883, an appeal was taken by Scott from that decision of the commissioner of patents to the secretary of the interior, under rules prescribed by that officer, dated May 17, 1883, who, on March 7, 1884, reversed the decision of the commissioner of patents in favor of Gill, adjudged Scott to be the original and first inventor of the improvements claimed, and that Gill was not entitled to a patent therefor. In his return to the alternative writ the commissioner of patents, admitting that he had refused, in compliance with the demand of the relators, to accept their tender of the final fee, and to prepare the patent for signature, and to take any further steps therein, declares: "That he so refused, not because he desired to make further inquiry, or to be further advised in that behalf, no motion or other proceeding for rehearing or review had been taken or was pending before him in that behalf, but that he based his refusal, and does so still, solely upon the ground that the honorable the secretary of the interior had entertained the appeal taken to him from said decision under the rules aforesaid, and had, in pursuance of said appeal, entered a decision reversing that of the commissioner of patents, and awarded priority of invention to Walter Scott."

The return proceeds as follows: "Your respondent further says that for many years, and until 1881, it was held, in pursuance of decisions and opinions of the honorable attorney general made in that behalf, that the honorable the secretary of the interior had, and therefore has, no legal authority to review on appeal a decision of the commissioner of patents wherein the commissioner has finally adjudged an applicant to be entitled to a patent as prayed for in his application; in other words, that the judgment of the commissioner of patents upon the right of an applicant to have and receive a patent is final and conclusive, subject only to review by the supreme court of the District of Columbia, and such other courts as have jurisdiction in that behalf, and by the commissioner; and the practice of the patent-office and of the honorable the secretary of the interior conformed thereto. This question, however, was again raised in the cases of Nicholson v. Edison and Le Roy v. Hopkins, and the honorable the attorney general of the United States, to whom the question was again referred, in an opinion signed on the twentieth day of August, 1881, held that the honorable the secretary of the interior had and could, on appeal to him, exercise the jurisdiction to review the decision of the commissioner of patents, and control his action in that behalf; and later on, to-wit, the twenty-sixth day of February, 1884, the honorable secretary, in an official letter, (a copy of which is hereto attached, marked E.) advised your respondent that he, the honorable secretary, had, in pursuance of the opinion of the honorable attorney general, exercised jurisdiction on appeal from the judicial action of the commissioner in determining questions devolved upon him by the statute. In deference to that opinion, and the action of the honorable the secretary of the interior in the case under consideration, your respondent refused, and does refuse, to accede to the demand of the relator. That, in view of the decisions and the uniform practice of the commissioners of patents and the heads of the department of the interior prior to 1881, doubt and uncertainty have arisen touching the legal obligations devolving upon your respondent in the case under consideration and those of like character. Your respondent further says that if the judgment of the commissioner of patents, which is that the relator is entitled to receive his patent as prayed for, is final, and if, upon such judgment, it is the lawful duty of the respondent to accept said final fee, and take the necessary and proper steps to prepare said patent for issued as prayed, then your respondent has improperly refused, and does improperly refuse, to prepare said patent for issue; but, if his decision is sub