directly to this court in six specified classes of cases: Where the jurisdiction of the court below is in issue; in prize causes; in cases of convictions of capital or otherwise infamous crimes; in cases involving the construction or application of the constitution of the United States; in cases in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question; in cases where the constitution or law of a state is claimed to be in contravention of the constitution of the United States. Cases in which the United States are plaintiffs or petitioners are not enumerated as falling within either of these classes, nor are cases involving merely the construction of a law of the United States, those ordinarily arising under the heads of jurisdiction in respect of subjects-matter treated of in the sixth sec

tion.

By the sixth section it is provided that the circuit courts of appeals shall have appellate jurisdiction "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law." The circuit courts of appeals, therefore, have appellate jurisdiction of all cases in which original jurisdiction is conferred on the circuit courts by reason of the United States being plaintiffs or petitioners. It is further provided by that section that "the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy, being aliens and citizens of the United States or citizens of different states; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws and in admiralty cases." And the last paragraph of the section provides that "in all cases not herein before, in this section, made final, there shall be of right an appeal or writ of error or review of the case by the supreme court of the United States where the matter in controversy shall exceed one thousand dollars besides costs." Judgments or decrees in cases in which the ground of jurisdiction of the circuit court is that the United States are plaintiffs or petitioners are not made final in terms, and such cases would fall within the last paragraph, unless restricted by the previous enumeration. And the contention is that the words, "cases arising under the patent laws," must be held to operate as such restriction, and to render the judgments and decrees of the circuit courts of appeals final, notwithstanding the existence of another distinct ground of jurisdiction in the circuit court, and that there would consequently be a right of appeal from a decree of a circuit court of appeals dismissing a bill by the United States to cancel a patent for land, but none where the bill is one to repeal an Invention patent.

In U. S. v. American Bell Tel. Co., 128 U. S. 315, 359, 9 Sup. Ct. 90, we said: "In the present case the United States are plaintiffs, and the bill asserts that the suit is one of a civil nature, and of equitable cognizance; and manifestly, if it presents a good cause of action, it arises under the laws and constitution of the United States. It is therefore within the language both of the constitution and of the statute conferring jurisdiction on the circuit courts." Two grounds to support the jurisdiction were thus indicated, but the question there was whether the judicial power of the United States under the constitution extended to a suit by, the United States to repeal a patent, and in that view*it was held that such a suit was▾ a case arising under the laws of the United States, as had been previously adjudged many times by the court. In the language of appellees' counsel, "the judgments in the great contests reported in Cranch and Wheaton established that these words embraced, and therefore carried the judicial power to, every case wherein the existence or extent of a right purporting to be given by federal authority, and claimed by either party, became an essential ingredient."

Nevertheless, in respect of removals of suits from the state courts to the circuit courts under the acts of March 3, 1887, and August 13, 1888, we held, upon what was deemed the true construction of the statutes, that the right of removal was limited to cases in which it appeared from the plaintiff's statement of his own claim that his cause of action was one arising under the constitution or laws of the United States. Tennessee v. Bank of Commerce, 152 U. S. 454, 14 Sup. Ct. 654; Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34.

In Mining Co. v. Turck, 150 U. S. 138, 14 Sup. Ct. 35, it was ruled that, when the original jurisdiction of a circuit court is invoked upon the sole ground that the determination of the question depends upon some question of a federal nature, it must appear at the outset, from the pleadings, that the suit is one of that character of which the circuit court could properly take cognizance at the time its jurisdiction was invoked, and that, where the jurisdiction was invoked solely on the ground of diverse citizenship, the judgment of the circuit court of appeals was final, although another ground for jurisdiction in the circuit court might be developed in the course of subsequent proceedings in the case. How the case might be if the plaintiff had invoked jurisdiction on two distinct grounds, one of them being independent of diverse citizenship, was not determined. Nor is it necessary to pass upon that question in this instance, for the motion may be disposed of upon the inquiry whether it was manifestly the intention of congress to include such a case as that before us in the words, "arising under the patent laws." Now, actions at law for infringe ment, and suits in equity for infringement, for

interference, and to obtain patents, are suits which clearly arise under the patent laws; being brought for the purpose of vindicating rights created by those laws, and coming strictly within the avowed purpose of the act, to relieve this court of that burden of litigation which operated to impede the disposition of | cases of peculiar gravity and general importance. We are of opinion that it is reasonable to assume that the attention of congress was directed to this class of cases, and that the language was used as applicable only to them, and that there is nothing in the objects sought to be attained and the mischiefs sought to be remedied by the act which furnishes foundation for the belief that congress manifestly intended to place a limitation on the appellate jurisdiction of this court in a case such at this.

Moreover, in those cases the subject-matter is everything in respect of jurisdiction, and the character of the parties nothing, while here the character in which the plaintiffs sue and the nature of the case are inseparably blended.

In instituting this suit the government appeared on behalf of the public, and, as it were, in the exercise of the beneficent function of superintending authority over the public interests, and the rule of construction in such cases is properly regarded as affected by considerations of public policy. It is upon the principle of public policy that the United States have been held not bound by statutes of limitation unless congress has clearly manifested that they should be so bound. U. S. v. Nashville, C. & St. L. Ry. Co., 118 U. S. 120, 125, 6 Sup. Ct. 1006; Stanley v. Schwalby, 147 U. S. 508, 13 Sup. Ct. 418. And the same rule is applicable to the exercise of the prerogative of parens patriæ inherent in the supreme power of every state, in respect of which it was observed by Mr. Justice Strong in Dollar Sav. Bank v. U. S., 19 Wall. 227, 237, that so much of the royal prerogative as belonged to the king in his position as universal trustee enters as much into the principles of our state as it does into the principles of the British government. Hence it was held in U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. 1083, that the United States are not bound by any statute of limitations, nor barred by laches of their officers, in a suit brought by them, as sovereign, to enforce a public right or to assert a public interest.

is by proceedings by the United States against the patentee.

We cannot impute to congress the intention of narrowing the appellate jurisdiction of this court in a suit brought by the United States as a sovereign in respect of alleged miscarriage in the exercise of one of its functions as such, deeply concerning the public interests, and not falling within the reason of the limitations of the act. Motion denied.

Mr. Justice GRAY took no part in the consideration and disposition of this motion.

(159 U. S. 541)

WEEKS v. BRIDGMAN.
(November 11, 1895.)
No. 44.

PUBLIC LANDS - PRE-EMPTION RIGHT-TIME OF
ATTACHING-RAILROAD GRANT-CERTIFI-
CATION TO STATE-EFFECT.

1. The fact that the local land officers wrongfully refused an application to pre-empt certain land does not prevent the attaching of the preemption right to the land from the date of the application, so as to except it from a railroad grant subsequently located; and the fact that the applicant finally obtains title by means of an act of congress passed for his relief is immaterial.

2. When land is not subject to disposition as a part of the public domain, owing to a decision by the secretary of the interior that it is subject to a pre-emption right, the action of the land department in including it in a list of lands certified to the state to aid in the construction of railroads is ineffectual to pass any title.

In Error to the Supreme Court of the State of Minnesota.

This was an action brought by Charles A. Weeks against Coleman Bridgman in the district court for the Seventh judicial district of Minnesota under a statute of that state to determine adverse claims to vacant and unoccupied real estate. Judgment having been rendered for plaintiff, the cause was taken to the supreme court of Minnesota on appeal, the judgment reversed, and the cause remanded. 41 Minn. 352, 43 N. W. 81. The cause was again tried in the district court by the court, a jury having been expressly waived, and judgment entered for defendant, which, on a second appeal, was affirmed.* 46 Minn. 390, 49 N. W. 191. To this judgment the pending writ of error was allowed.

The facts were, in substance, as follows: By act of congress of March 3, 1857 (11 Stat. 195), there was granted "to the territory of Minnesota, for the purpose of aiding in the construction of railroads, from Stillwater, by way of Saint Paul and Saint Anthony, to a point between the foot of Big Stone Lake and the mouth of Sioux Wood river, with a branch via Saint Cloud and Crow Wing, to the navigable waters of the Red River of the North, at such point as the legislature of said territory may determine, every alternate section of land, des

width on each side of each of said roads and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent, or agents, to be appointed by the governor of said territory or future state to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold, or otherwise appropriated, or to which the rights of pre-emption have attached, as aforesaid; which lands (thus selected in lieu of those sold, and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the territory or future state of Minnesota for the use and purpose aforesaid."

The Minnesota & Pacific Railroad Company was organized as a railroad corporation under and pursuant to an act of the legislature of the territory, now state, of Minnesota, approved May 22, 1857. The St. Paul & Pacific Railroad Company was organized in conformity to an act of the legislature of the state, approved March 10, 1862, and under and by virtue of that act became the owner of all the lines of railroad formerly owned by the Minnesota & Pacific Railroad Company, and also of the lands granted to the territory, now state, of Minnesota, to aid in the construction of the branch line of railroad from St. Anthony northward to St. Cloud, under the act of congress of March 3, 1857. On February 6, 1864, the First Division of the St. Paul & Pacific Railroad was organized for railroad purposes, which organization was confirmed by act of the legislature of the state, approved February 6, 1866, and said First Division succeeded to all the rights, privileges, and lands possessed or granted to the Minnesota & Pacific Railroad Company or to the St. Paul & Pacific Railroad Company, as its successor, in any way pertaining to the branch line.

The line of the branch railroad was definitely fixed, and a map thereof filed with the secretary of the interior, December 30, 1857, and the land in controversy is part of an odd section within six miles of said branch line, being section 13, township 124 N., range 28 W. This section was certified to the state of Minnesota by the secretary of the interior, October 25, 1864, as a part of the land granted by the act of congress of March 3, 1857. The branch line of railroad was constructed from St. Anthony to St. Cloud, opposite the land in controversy, during September, 1866, and plaintiff in error

had acquired all the right and title to the land described in the complaint that was ever possessed by the territory or state of Minnesota, or the First Division of the St. Paul & Pacific Railroad Company.

George F. Brott, on September 9, 1855, entered into a contract with the United States to carry the mail from Minneapolis to supply the offices at St. Cloud, Monticello, and Dayton. This route was about 65 miles in length, and the contract said: "The route from Minneapolis by Dayton to Monticello and St. Cloud, aforesaid, is to be deemed and considered a post road during the continuance of this contract."

By act of congress of March 3, 1855 (10 Stat. 683, 684), it was provided that: "Each contractor engaged, or to be engaged in carrying mails through any of the territories; "west of the Mississippi, shall have the privilege of occupying stations at the rate of not more than one for every twenty miles of the route on which he carries a mail, and shall have a pre-emptive right therein, when the same shall be brought into market, to the extent of six hundred and forty acres to be taken contiguously, and to include his improvement." As mail contractor, Brott, in 1855, selected for and built and established his mail station upon section 13, which station consisted of stable and building for the use of his teams and carriages, and maintained the same throughout the term of his mail contract. Brott's route terminated at St. Cloud, and no mail was carried west from there under the United States government until the latter part of the year 1856, or some time in 1857.

August 7, 1857, Brott made application to the United States land office at St. Cloud to file a pre-emption declaratory statement for the S. W. 4 of the N. W. 4 of said section 13, township 124, range 28, which embraced the land in controversy, with other lands, claiming the right to pre-empt the same, as a mail contractor, under the act of March 3, 1855. This application was by the decision of the local land officers rejected, and from such decision Brott appealed to the commissioner of the general land office, by whom the decision of the local land officers was sustained. Brott thereupon appealed to the secretary of the interior, who reversed the commissioner's decision, on August 30, 1861, and held that Brott should be permitted to enter the tracts mentioned in his application upon the production of proof of the performance of his mail contract and of the occupation of the stations, and upon compliance with the laws and regulations in other respects applicable to the case. On May 26, 1860, congress passed an act entitled "An act for the relief of George F. Brott," providing (12 Stat. 843): "That George F. Brott be, and he is hereby, authorized to enter the following described lands, to wit: [omitting description which includes that in dispute] in the district of lands subject to sale at the land office at St.

1

Cloud, Minnesota; said tracts containing five hundred and sixty-two and twenty hundredthsacres, upon the payment by the said Brott of the usual minimum of one dollar and twenty-five cents per acre therefor: provided, that said entry shall in nowise interfere with or embrace any land to which there is a valid subsisting claim under the pre-cmption laws of the United States; and the commissioner of the general land office is directed to issue a patent on said entry."

No further effort was made by Brott to enter the land simply as such mail contractor, but the entry of the same was thereafter made by him under and in pursuance of the act of congress passed for his relief, he paying for the land the sum specified.

In July, 1871, a patent for the land issued from the United States to Brott in the usual form, except that it was stated therein that the land had been certified to the state of Minnesota for railroad purposes by mistake. The defendant at the time of the commencement of the action had and was seised of all the right and title to the lots in controversy that Brott ever had or possessed under his patent, and claimed his right to such title under and by virtue of mesne conveyances duly made, executed, and delivered by and through Brott and his grantees, and duly recorded.

M. D. Grover, for plaintiff in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The line of the road was definitely fixed December 30, 1857. The lands within the place limits then subject to the grant were thereby segregated from the public domain, and the grant took effect thereon. But under the granting act, lands to which pre-emption rights had attached, when the line was definitely fixed, were as much excepted therefrom as if in a deed they had been excluded by the terms of the conveyance. And this was true in respect of applications for preemption rejected by the local land office, and pending on appeal in the land department at the time of definite location, since the initiation of the inchoate right to the land would prevent the passage of title by the grant, and the determination of its final destination would rest with the government and the claimant. Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566; Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112; Bardon v. Railroad Co., 145 U. S. 535, 12 Sup. Ct. 856; Ard v. Brandon, 156 U. S. 537, 15 Sup. Ct. 406; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796. Brott selected certain lands, including this in dispute, for and built and established his mail stations thereon in 1855, and maintained the same during the term of his mail contract; and filed his application to enter these lands, as a mail contractor, under the act of March 3, 1855, in the local land office August 11, 1857. The application was

rejected by the local land officers, and Brott appealed to the commissioner of the general land office, and from his decision to the secretary of the interior, who reversed the rulings of the land officers and of the commissioner, and held Brott entitled to pre-empt the stations occupied. He was, indeed, required to produce proof of the performance of his mail contract, and of the occupation of the lands as stations, and he actually entered them in pursuance of the act of congress for his relief; but in Ard v. Brandon, supra, it was held that when a pre-emptor has the right to make entry, and applies to the local land officers, and they refuse to recognize his right, it will be deemed to date from the time of his application, and this notwithstanding he proceeds to obtain title in some other way. The conclusion follows that Brott's pre-emption claim must be regarded as having attached prior to the definite location, December 30, 1857, and that the title did not pass under the congressional grant to the state.

But it is contended that, as on October 25, 1864, the secretary of the interior included section 13 in the lists of lands certified to the state of Minnesota under the act of August 3, 1854 (10 Stat. 346), as a part of the lands granted by the act of March 3, 1857, that certification was an adjudication that the land in question had not been previously disposed of, and that no pre-emption right had attached thereto, and passed the legal title, whatever Brott's equitable rights might be; and that, while the certification might be voidable, it was not absolutely void. The act of August 3, 1854, provided that, where lands had been or should be thereafter granted to the several states or territories, and the law did not convey the fee-simple title of such lands, or require patents to be issued therefor, the lists of such lands which had been or might thereafter be certified "shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of congress, and intended to be granted thereby; but where lands embraced in such lists are not of the character embraced by such acts of congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby."

As we have seen, this particular land was not included in the grant, and the secretary of the interior had so decided on August 30, 1861, when he determined that the pre-emption right had attached. And since it was not so included, nor subject to disposition as part of the public domain, on October 25, 1864, the action of the land department in including it within the lists certified on that day was ineffectual. Noble v. Railroad Co., 147 U. S. 165, 174, 13 Sup. Ct. 271.

The distinctions between void and voidable acts need not be discussed. It is rarely that things are wholly void and without force and

effect as to all persons and for all purposes, and incapable of being made otherwise. Things are voidable which are valid and effectual until they are avoided by some act; while things are often said to be void which are without validity until confirmed. 8 Bac. Abr. "Void and Voidable"; Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. 408; Ex parte Lange, 18 Wall. 163; State v. Richmond, 6 Fost. (N. H.) 232; Anderson v. Roberts, 18 Johns. 515; Pearsoll v. Chapin, 44 Pa. St. 9. As against Brott, the certification had no operative effect.

It is also objected that Brott was not a qualified claimant under the act of 1855, because that act only applied to a contractor engaged in carrying the mail through any of the territories west of the Mississippi, and because it does not appear that his declaratory statement was ever accepted or recognized, or that he made proof of his occupation of the land as a mail station; but these and other like objections involve questions between Brott and the government, already determined in his favor, and which the railroad company and its grantees are not in a position to raise upon this record.

Judgment affirmed.

gally procured. The real defendant was the Edison Electric Light Company, and the case involved a contest between what are known as the Sawyer and Man and the Edison systems. of electric lighting.

In their application, Sawyer and Man stated that their invention related to "that class of electric lamps employing an incandescent conductor inclosed in a transparent, hermetically sealed vessel or chamber, from which oxygen is excluded, and * * more especially to the incandescing conductor, Its substance, its form, and its combination with the other elements composing the lamp. Its object is to secure a cheap and effective apparatus; and our improvement consists, first, of the combination, in a lamp chamber, composed wholly of glass, as described in patent No. 205,144," upon which this patent was declared to be an improvement, "of an incandescing conductor of carbon made from a vegetable fibrous material, in contradistinction to a similar conductor made from mineral or gas carbon, and also in the form of such conductor so made from such vegetable carbon, and combined in the lighting circuit with the exhausted chamber of the lamp."

The following drawings exhibit the substance of the invention:

Figure 2.

(159 U. S. 465)

CONSOLIDATED ELECTRIC LIGHT CO.

▼. McKEESPORT LIGHT CO.

(November 11, 1895.)
No. 10.

PATENTS-EXCESSIVE CLAIMS-NECESSITY FOR EXPERIMENTS-INCANDESCENT ELECTRIC LAMPS.

1. The imperfectly successful experiments of Sawyer and Man with carbonized paper and wood-carbon filaments as incandescent conductors for electric lamps did not authorize them to claim the use for that purpose of all fibrous and textile substances; it appearing that there was no such quality common to fibrous and textile substances generally as makes them suitable for that purpose, and that numerous experiments, extending to thousands of different kinds of fibrous vegetable materials, were in fact made before the particular fiber of the commercially successful lamp was discovered by Thomas A. Edison. 40 Fed. 21, affirmed.

2. The Sawyer-Man patent, No. 317,076, for an incandescent electric lamp, is void as to claims 1, 2, and 4, which cover the use of all fibrous and textile materials for incandescent conductors.

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

This was a bill in equity, filed by the Consolidated Electric Light Company against the McKeesport Light Company, to recover damages for the infringement of letters patent No. 317,076, issued May 12, 1885, to the ElectroDynamic Light Company, assignee of Sawyer and Man, for an electric light. The defendants justified under certain patents to Thomas A. Edison, particularly No. 223,898, issued January 27, 1880; denied the novelty and utility of the complainant's patent; and averred that the same had been fraudulently and ille

Figure 3

Figure 4.

The specification further stated that: "In the practice of our invention, we have made use of carbonized paper, and also wood carbon. We have also used such conductors or burners of various shapes, such as pieces with their lower ends secured to their respective supports, and having their upper ends united so as to form an inverted V-shaped burner. We have also used conductors of varying contours, that is, with rectangular bends instead of curvilinear ones; but we pre fer the arch shape."

467