(46 S.Ct.) Ed. 629, the State law undertook to treat viewable in the Supreme Court, unless the court what this Court held to be only a covenant can separate the questions to see whether there was mistake of law. as a condition subsequent and as having entailed a forfeiture. The suit was brought upon this statute and a judgment rendered for the State in its courts was held to have *70 given effect to the *statutory attempts to enlarge the obligations of the Railway Company under a grant from the State. The difference between that case and this is plain. A mere authority to test disputed rights by a suit does not impair the obligation of a contract upon which a defendant relies. When a claim is set up under a contract the Constitution does not forbid litigation to decide whether one was made or what it means. St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142, 149, 21 S. Ct. 575, 45 L. Ed. 788; Mercantile Trust & Deposit Co. v. Columbus, 203 U. S. 311, 321, 27 S. Ct. 83, 51 L. Ed. 198; Des Moines v. Des Moines City R. Co., 214 U. S. 179, 29 S. Ct. 553, 53 L. Ed. 958; South Covington & Cincinnati Street R. Co. v. Newport, 259 U. S. 97, 99, 100, 42 S. Ct. 418, 66 L. Ed. 842. The statutes in question are still more remote from those which while valid on their face are construed by the State Courts to apply to a matter not subject to State control. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 42 S. Ct. 106, 66 L. Ed. 239. Here there was no attempt to control otherwise than by the result of a suit in which the Telegraph Company could set up all its alleged contracts and protect all its constitutional rights. The plaintiff in error shows no law impairing the obligation of contracts and therefore no ground for coming here. See Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 639, 32 S. Ct. 577, 56 L. Ed. 924; Tidal Oil Co. v. Flanagan, 263 U. S. 444, 452, 44 S. Ct. 197, 68 L. Ed. 382. Writ of error dismissed. (269 U. S. 144) STILZ v. UNITED STATES. Appeal from the Court of Claims. Action by Harry B. Stilz against the United States. From a judgment of the Court of Claims (59 Ct. Cl. 21), adjudging that plaintiff was not entitled to recover, plaintiff appeals. Affirmed. Mr. Harry B. Stilz, pro se. Mr. John W. Loveland, Sp. Asst. Atty. Gen., for the United States. *145 *Mr. Justice BUTLER delivered the opinion of the court. Plaintiff brought this action, under the Act of Congress approved July 1, 1918, c. 114 (40 Stat. 705), to recover compensation for the use and manufacture, by or for the Navy Department, of certain oil burners alleged to infringe patents 945,873 and 1,066,161, granted him January 11, 1910, and July 1, 1913, respectively. The Court of Claims filed findings of fact and conclusion of law (59 Ct. Cl. 21), and adjudged that plaintiff was not entitled to recover. The substance of the findings in respect of the prior art, the burners covered by plaintiff's patents, and the burners manufactured and used by the United States and alleged to be infringements, may be indicated briefly. Each of these patents was for improvements in oil burners. In order successfully to be used for fuel, oil must be atomized to permit its mixture with the proper amount of air for combustion. In the prior art to which plaintiff's patents relate, there were numerous structures disclosed by patents and publications referred to in the findings, including two types of burners in use, and known, respectively, as mechanical atomizers and steam atomizers. In the former, the oil is atomized by means purely mechanical. It is projected under heavy pressure from the burner into the furnace in a whirling cone-shaped film, which almost immediately develops into fine spray. In the latter, . there is a combination with the oil, while (Argued Oct. 13 and 14, 1925. Decided Nov. yet within the burner proper, of a stream 16, 1925.) No. 38. 1. Courts 389 Infringement of patent question of fact, and finding of Court of Claims thereon in nature of special verdict. Infringement of patent is a question of fact, and finding of Court of Claims of noninfringement by the United States was in the nature of a special verdict of a jury not reviewable by the Supreme Court. of steam, air, or other gaseous fluid under pressure for the purpose of aiding the atomization. In both, air for combustion is admitted through a surrounding register, and is more or less intimately intermixed with the oil spray. The burner covered by patent 945,873 provides for the use of steam, air, or other gaseous fluid under pressure to aid in atomization of the oil. The oil, under heavy pres *146 2. Courts 389-Court of Claims' determi- *sure, is discharged tangentially into the annation of mixed question of law and fact not nular space of the nozzle between the outer reviewable by Supreme Court, unless mistake casing and center plug, thus giving the oil of law is apparent. a rotary motion in the nozzle. The steam Determination of mixed question of fact or other fluid, under heavy pressure is also and law by the Court of Claims is not re-discharged tangentially into this space in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the same direction as the oil with which it pose, nor used with any part of the equipment for the atomization of the oil. The air. which passes through the register encircling the burner, is to supply oxygen nec essary for combustion. "It does not appear that any of the devices of the plaintiff's said letters patent No. 945,873 and No. 1,066,161 have been manufactured or used by the United States, or that said letters patent have been infringed by the United States." From the findings, it clearly appears that the mixing of the steam, air, or other gaseous fluid with the oil in the annular space The burner covered by patent 1,066,161 to aid atomization before the spray is brought also provides for the use of steam, air, or into contact with the air supplied for comother gaseous fluids under pressure as an bustion, and before it passes into the furaid in the atomization of the oil. This de- nace, is the important feature distinguishing vice includes an annular space between in- the burners covered by plaintiff's patents ner and outer casings of the nozzle. The from those above described which are manuoil and steam are not brought together un-factured and used by the United States. The til after the oil, under heavy pressure, is Court of Claims expressly found: forced through a spiral and orifice into the front of this space in a rapidly rotating cone-shaped film. The steam, air, or other fluid passes through a pipe under heavy pressure, and is discharged tangentially into this space, rotating towards the outer orifice in a whirling layer. The oil leaving the inner orifice is struck by the rotating steam before it passes through the outer orifice. Air for combustion is supplied through a circular register attached to the front of the furnace, through the center of which the oil is projected from the nozzle into the furnace in a cone-shaped spray. The air flows around the oil spray and mixes with it in the register and in the furnace, where combustion takes place. The type and character of the oil burners and equipment manufactured and used by the United States, and which are alleged by plaintiff to infringe his patents, are indicated by the findings. These oil burners and equipment provide for the atomization of the oil by means of its projection into the fur *147 nace under heavy pressure *through spiral passages in the nozzle of the burner in a whirling cone-shaped film which almost immediately upon leaving the nozzle develops into fine spray. The air for combustion is furnished under mild blower pressure in the furnace room, through an air register surrounding the burner and burner opening into the furnace. The register is provided with vanes or other means for giving the air a whirling motion to facilitate the intermixture with the oil spray. The oil and air are whirled together in the same direction. No steam, air, or other gaseous fluid is introduced into or used in the burner proper for any pur [1, 2] Infringement is a question of fact. The quoted finding is in the nature of special verdict of a jury. United States v. Anciens Etablissements, 224 U. S. 309, 322, 330, 32 S. Ct. 479, 56 L. Ed. 778; Brothers v. United States, 250 U. S. 88, 93, 39 S. Ct. 426, 63 L. Ed. 859. This court accepts the findings of fact made by the Court of Claims, and cannot review them. Collier v. United States, 173 U. S. 79, 80, 19 S. Ct. 330, 43 L. Ed. 621. And, even where a finding determines a mixed question of law and fact, it is conclusive unless *148 the *court is able to separate the question to see whether there is a mistake of law. United States v. Omaha Indians, 253 U. S. 275, 281, 40 S. Ct. 522, 64 L. Ed. 901; Ross v. Day, 232 U. S. 110, 116, 34 S. Ct. 233, 58 L. Ed. 528; Whitcomb v. White, 214 U. S. 15, 16, 29 S. Ct. 599, 53 L. Ed. SS9; Marquez v. Frisbie, 101 U. S. 473, 476, 25 L. Ed. 800. Our consideration of the case is confined to questions of law. Union Pacific Railway Co. v. United States, 116 U. S. 154, 157, 6 S. Ct. 325, 29 L. Ed. 584; Keokuk & Hamilton Bridge Co. v. United States, 260 U. S. 125, 43 S. Ct. 37, 67 L. Ed. 165. And the situation is the same as it would be if the facts had been agreed upon by the parties. United States v. Pugh, 99 U. S. 265, 271, 25 L. Ed. 322. As no infringement was found, the facts are not sufficient to constitute a cause of action. Judgment affirmed. (269 U. S. 55) (46 S.Ct.) OLD DOMINION LAND CO. v. (Argued Oct. 16, 1925. Decided Nov. 16, 1925.) No. 55. 1. Eminent domain 8-Statute held to au thorize institution of condemnation proceeding for acquisition of land. Act March 8, 1922, c. 100, § 1, amending Appropriation Act, July 11, 1919, c. 8, as already amended by Act Aug. 12, 1919, c. 44, and Act Feb. 28, 1920, c. 90, so as to "authorize completion of the acquisition of real estate hereinafter specified," and which made specific appropriation "for quartermaster warehouses, Newport News, Virginia, $223,670," held to authorize, not only the carrying out of agreements previously made, but the acquisition through condemnation proceedings, subsequently instituted under Act Aug. 1, 1888, c. 728 (Comp. St. §§ 6909, 6910), of the land at Newport News, which was made subject of the specific appropriation, particularly in view of Deficiencies Appropriation Act July 1, 1922, c. 258, making appropriation "for the completion of acquisition of real estate, as authorized by" Act March 8, 1922. 2. Eminent domain 133-Statute excluding from amount paid owners for condemned lands value of improvements made by government not unconstitutional. Act March 8, 1922, c. 100, § 1, amending Appropriation Act, July 11, 1919, c. 8, as already amended by Act Aug. 12, 1919, c. 44, and Act Feb. 28, 1920, c. 90, authorizing completion of acquisition of real estate specified therein, then being occupied by government under leases or otherwise, held not invalid, because in section 3 it provided that any addition to the value of the premises resulting from improvements thereto, or in the vicinity thereof, made by or at the expense of the United States, should be excluded from the sum paid to or recovered by the owners. 3. Eminent domain 18-Statute authorizing condemnation of land on which government had constructed costly improvements held at least implied declaration of public purpose. Act March 8, 1922, c. 100, § 1, amending Appropriation Act July 11, 1919, c. 8, as already amended by Act Aug. 12, 1919, c. 44, and Act Feb. 28, 1920, c. 90, authorizing and making appropriation for acquisition of land "for quartermaster warehouses" on which government, while occupying under lease, had constructed buildings at cost of more than $1,500,000, held to contain implied, if not express, declaration of public purpose, which was entitled to deference until shown to involve an impossibility, particularly in view of Deficiencies Appropriation Act July 1, 1922, c. 258, making appropriation to pay for same land under heading "Sites for Military Purposes." 4. Eminent domain 167(1)—Act held not to require that Secretary of War's request for institution of proceedings show that in his opinion condemnation is necessary. Act Aug. 1, 1888, c. 728 (Comp. St. §§ 6909, 6910), does not require that Secretary of War's request that Attorney General institute proceed The This is a proceeding for the condemnation of land in Newport News, Virginia, for the use of the United States. Act of August 1, 1888, c. 728, 25 Stat. 357 (Comp. St. §§.6909, 6910). It has resulted in a condemnation fixing the sum to be paid, subject to questions of law reserved by the plaintiff in error, the Old Dominion Land Company, at the trial and decided by the Circuit Court of Appeals. 296 F. 20. During the late war the Government took leases of the land from the Old Dominion Land Company for military purposes and put structures upon it costing more than a million and a half dollars. leases were for short terms and were renewed, until in 1922 the lessor refused to renew them again. By the terms of the agreements the United States had a right to remove the structures but not beyond thirAn offer to ty days from the termination. purchase the land was made by the United States but was refused and this proceeding was instituted on July 29, 1922, just before the thirty days allowed by the leases had run out. The main contentions of the plaintiff in error are that the Acts of Congress relied upon do not authorize the taking attempted here; that one of those acts is unconstitutional, and that the taking although it might be for the benefit of the United States, to save its buildings, was not a taking for public use. We are of opinion that these contentions so far as material to the case cannot be sustained and that the decision below was right. The statute authorizes this proceeding. The Appropriation Act of July 11, 1919, c. 8, 41 Stat. 104, 128, and its amendments of the same year (chapter 44, 41 Stat. 278, and chapter 90, 41 Stat. 453), had stopped the purchase of land in connection with military purposes generally, except in certain cases when it was more economical to buy than to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes pay rent or damages. This act was further | be included in the valuation of said lands." 64 amended however by the Act of March 8, 1922, c. 100, § 1, 42 Stat. 418, so as to "authorize completion of the acquisition of the real estate hereinafter specified in respect whereof requisition notices had been served or given before July 11, 1919, * or in respect whereof agreements had been made for purchase thereof, or proceedings begun for condemnation thereof." "For the purpose of carrying out the provisions of this section the following amounts are hereby authorized to be appropriated, to wit: * * For quartermaster warehouses, Newport News, Virginia, $223,670." This is the land in question. By section 3 of the same Act the Secretary of War was authorized to renew leases in order to enable the Government to remove its buildings and other property, and to approve awards and to have new awards made for the purchase or condemnation of land necessary in his judgment for the operation of water plants now But upon this issue the statute was superfluous. When these proceedings were begun the buildings belonged to the United States. It would not be just to allow the delay necessary in legal proceedings to deprive the United States of rights that it had and endeavored by this suit to assert. Consolidated Turnpike Co. v. Norfolk & Ocean View Ry. Co., 228 U. S. 596, 602, 33 S. Ct. 570, 57 L. Ed. 857. In the often quoted language of Chief Justice Shaw: instant and on the spot, the true rule of justice "If a pie-powder court could be called on the for the public would be, to pay the compensation with one hand, while they apply the axe with the other." Parks v. Boston, 15 Pick. 198, 208. It in no way appeared that the value of the land was increased by other improvethe structures upon the land so that the most ments in the vicinity, or otherwise than by indefensible aspects of the statute are not before us here. Furthermore the instruc 66 termine the fair market value of the land as well for its present purposes as for those for which it might be reasonably *adapted at the time or in the immediate future, and to take into consideration the facts and circumstances of its location, etc., with no language that excluded consideration of improvements in the vicinity, if any there were. located thereon, etc., provided "that any additions to the jury were that they were to detion to the value of the premises resulting from the improvements thereto or in the vicinity thereof made by or at the expense of the United States shall be excluded from the sum paid to or recovered by the owners." The later Deficiencies Appropriation Act of July 1, 1922, c. 258, 42 Stat. 767, 777, supplies deficiencies: "Sites for military purposes: For completion of acquisition of real estate as authorized by" the last mentioned Act: "For quartermaster warehouses, Newport News, Virginia, $223,670." [1] It is argued that the general purpose of this exception to the stopping of expenditures was only to carry out agreements by which the Government already was bound; and that the specific appropriations were made only in case the property mentioned was the object of such previous agreement. No doubt the general purpose was that suggested, but the rest of the Act showed that the appropriation was not confined to that alone, and the specific unqualified mention of the land in question as land of *which the acquisition was to be completed overrides the general statement, however much confirmed by citations from the congressional debates. *65 | [3] But it is said that the taking was not for a public use, because it is said that the Secretary of War at least was thinking not of a future use of the land by the public or the Government but of saving the country from the loss of the buildings. We shall not inquire whether this purpose was or was not so reasonably incidental to the necessarily hurried transactions during the war as to warrant the taking, upon the principle illustrated by Brown v. United States, 263 U. S. 78, 44 S. Ct. 92, 68 L. Ed. 171. Congress has declared the purpose to be a public use, by implication if not by express words. If we disregard the heading quoted from the latest Act, "Sites for Military Purposes," which we see no reason for doing, and treat "For quartermaster warehouses" as descriptive rather than prospective, still there is nothing shown in the intentions or transactions of subordinates that is sufficient to overcome the declaration by Congress of what it had in mind. Its decision is entitled to deference until it is shown to involve an impossibility. But the military purposes mentioned at least may have been entertained and they clearly were for a public use. [2] Then it is said that the Act of March 8, 1922, was unconstitutional by reason of the proviso that we have stated, excluding from the compensation improvements upon the land or in the vicinity thereof made by the United States. There might be cases in which this provision could not be sustained, but there is no trouble here. For supposing [4] Some question is made as to whether that the proviso were extended beyond the a letter from the Secretary of War to the taking in aid of a water plant to which it Attorney General sufficiently authorized the immediately referred, it could have no bear-present proceedings by showing that in his ing except upon the issue agreed to by coun- opinion it was necessary or advantageous to sel, "whether the value of the warehouses the Government to take them. The Act of constructed by the United States Government August 1, 1888, c. 728, 25 Stat. 357, allows on the lands sought to be condemned should the Secretary to acquire by condemnation (46 S.Ct.) lands which he is authorized to procure for public purposes, "whenever in his opinion it is necessary or advantageous to the Government to do so"; gives jurisdiction to the courts of the United States, and makes it the duty of the Attorney General upon every application of such officer to cause proceed *67 $122 *Mr. Justice SUTHERLAND delivered the opinion of the Court. On November 1, 1915, the petitioner filed in the federal District Court for the Northern District of Texas a voluntary petition in bankruptcy. Within the statutory time he applied for his discharge, which was contestings to be commenced. We *perceive no re-ed. The referee, to whom it had been requirement that the Secretary should go fur-ferred as special master, having died after a ther than to apply to the Attorney General. hearing, his successor as referee reviewed Moreover, the Secretary's letter certainly the record and recommended that the disshowed that he thought the suit would be charge be denied. The referee's report was advantageous to the Government, and we filed with the clerk, but not acted upon by should be slow to suppose that the precise the court, nor was the matter ever brought shade of his opinion upon the point affected to the court's attention by the petitioner or the jurisdiction of the Court. any other interested party. On November 11, 1922, a second voluntary petition was filed by the bankrupt. The creditors listed in the first petition were, together with others, inIcluded in the second. In February, 1923, the petitioner filed an application for a dis Judgment affirmed. (269 U. S. 121) FRESHMAN v. ATKINS. (Argued Oct. 14, 1925. Decided Nov. 16, 1925.) charge under the second proceeding. 1. Bankruptcy No. 41. 404 (2)-Pendency of application held to preclude discharge in second proceeding. The referee recommended that the discharge be granted. The court, upon its own initiative, took judicial notice of the pendency of the former application and denied the second, in respect of the creditors included in the first Pendency of application for discharge in petition, granted it as to the additional credprior bankruptcy proceedings precluded dis-itors, and, upon an inspection of the record, charge in a second voluntary proceeding in redenied, by a separate order, the discharge spect to the same debts as listed in first pro- sought under the original proceeding. 290 ceeding. F. 609. The order denying in part the second application was affirmed on appeal by the Circuit Court of Appeals. 294 F. 867. A motion was made in the District Court for a 2. Bankruptcy 404(2)-Denial of or failure to apply for discharge bars application in second proceeding. Denial of discharge from debts provable, or failure to apply for it within the statutory time, bars application in second proceeding for discharge from same debts. 3. Bankruptcy 404 (2)-Court of its own motion may deny application for discharge on ground of pendency of similar application in prior proceeding. Court of its own motion may deny application for discharge in respect of debts as to which a similar application is pending in prior proceeding in same court. 4. Evidence 43(3)-Court may take judicial On Writ of Certiorari to the United States cuit. rehearing of the question of discharge under the original proceeding, but what, if any, action has been taken respecting it, does not appear. [1, 2] The opinions of the two courts do not proceed upon precisely similar grounds, but they reach the same conclusion, which is, in effect, that the pendency of the first application precluded a consideration of the second in respect of the same debts. In this conclusion we concur. A proceeding in bank *123 ruptcy has for one of its objects the *discharge of the bankrupt from his debts. In voluntary proceedings, as both of these were, that is the primary object. Denial of a discharge from the debts provable, or failure to inter-apply for it within the statutory time, bars an application under a second proceeding for Kuntz v. discharge from the same debts. Young, 131 F. 719, 65 C. C. A. 477; In re Bacon, 193 F. 34, 113 C. C. A. 358; In re Fiegenbaum, 121 F. 69, 57 C. C. A. 409; In re Springer (D. C.) 199 F. 294; In re Loughran, 218 F. 619, 134 C. C. A. 377; In re Cooper (D. C.) 236 F. 298; In re Warnock (D. C.) 239 F. 779; Armstrong v. Norris, 247 F. 253, 159 C. C. A. 347; In re Schwartz (D. C.) 248 F. 841; Horner v. Hamner, 249 F. 134, 161 C. C. A. 186, L. R. A. 1918E, 465; Monk v. Horn (C. C. A.) 262 F. 121. A proceeding in bankruptcy has the characteristics of a suit, In the matter of bankruptcy of Samuel Freshman. Application for discharge, objected to by W. S. Atkins, was denied in part (290 F. 609), and the order affirmed by the Circuit Court of Appeals (294 F. 867), and bankrupt brings certiorari. Affirmed. Messrs. Paul Carrington and Joseph Manson McCormick, both of Dallas, Tex., for petitioner. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |