a more complete and effective separation and insulation of the chambers than had been done before him. Out of respect for that court and the comity due to it, and notwithstanding the doubt implied from what we said on a former page of this opinion, we are disposed to follow the decision of the Third Circuit Court of Appeals. We are not certain in regard to the structure which was there held to be an infringement, but we infer from the opinion written by Judge Gray that it possessed the feature of complete separation and insulation of the chamber. This feature of complete insulation is present in all the claims of the Perkins patent here in question, and we need not refer to them in detail.

We come, then, to the question of infringement. Several styles of sockets, numbered from 1 to 4, are exhibited as made and sold at different times by the appellant. No. 1 of these, about which we will speak later, is clearly an infringement. It contains the two chambers separated and insulated from each other by a solid wall of insulating material, and both are insulated from the shell. The other elements are substantially equivalents. The other types have two chambers, but they are not completely separated from each other. There is a wall, but it is not entire. It is open in one of them for a space large enough to see through one chamber into the other and enable the operator to blow through it, and in others there is scarcely any division of the chambers. As to the first of these, it is contended that the breaking away of the wall is a mere subterfuge to differentiate the sockets from the Perkins patent. If this were so, if the opening in the wall were so small as to be negligible and to serve no useful purpose, we should think the contention ought to be sustained. But it is to be said that the opening is substantial. It differs from that of Pass and Seymour only in degree; and we have distinguished the Pass and Seymour patent from that of Perkins only by the fact that the wall of the former did not completely separate and insulate the chambers one from the other, while the latter does. Then, it appears, and in this we are confirmed by expert testimony, there is a substantial utility in being able to look into the socket without taking it apart and especially in being able to blow out the dust and débris that gathers in the socket by use. In the other types the difference is still more manifest. We are therefore constrained to hold that the appellant does not employ the feature which distinguished the Perkins patent, and on account of which that patent was granted. It seems impossible to doubt that but for it, and in view of the earlier patents, these claims of the patent could not have been granted.

As to the appellant's socket No. 1, before mentioned, these facts appear: The appellant for two or three months at a period of about one year before the bill was filed, made and sold some of these sockets; that they then discontinued the use of that form and adopted the later numbered styles. It does not appear that the appellee was notified of the discontinuance of the infringing style or had any knowledge that it had been discontinued. We cannot say that it had no reason for apprehending that its use would be discontinued, or would not be renewed. In these circumstances, the appellee was entitled to file its bill for an injunction.

The decree will be reversed in all other respects, with costs of this court to the appellant, but affirmed in respect to appellant's socket No. 1. The controversy over the socket No. 1 is of so small account that the general rule in regard to costs should not be varied.

BERNARD v. FRANK et al.

(Circuit Court of Appeals, Second Circuit. May 2, 1910.)

No. 239.

PATENTS (§ 326*)—INJUNCTION AGAINST INFRINGEMENT-VIOLATION.

A corporation organized by a defendant, who has been enjoined from infringement of a patent, for the sole purpose of escaping the consequences of the injunction, and of which such defendant is an officer, is bound by the injunction, and may be punished for contempt for its violation, although not formally made a party to the suit.

[Ed. Note. For other cases, see Patents, Cent. Dig. §§ 613-619; Dec. Dig. § 326.*]

Appeal from and in Error to the Circuit Court of the United States for the Southern District of New York.

Suit in equity by Leo Frank and Israel De Keyser against William Bernard, heard on appeal and writ of error by William Bernard, Incorporated, to review an order of the Circuit Court, entered September 22, 1909, holding William Bernard, Incorporated, guilty of contempt of court for making and selling articles in violation of an injunction issued July 25, 1904, and fining the said corporation $500, half to the United States and half to the complainants. A petition of appeal filed by the corporation was also allowed. Affirmed.

The original order to show cause, the affidavit upon which it was granted, the affidavits in opposition thereto, the opinion of the Circuit Court, the order under review, the petition for a writ of error, the assignment of errors and the petition on appeal are all entitled in an action against William Bernard as an individual. William Bernard, Incorporated, appears for the first time as a party to the action in the assignment of errors presented with the petition on appeal. How the corporation became a party to the action, if it ever did, does not appear. The injunction was served on William Bernard July 27, 1901. It has not been served upon the corporation, except as it was served upon Bernard individually, and, apparently, no injunction addressed to the corporation was ever issued.

Previous decisions growing out of this controversy are reported in (C. C.) 131 Fed. 269; 135 Fed. 1021, 68 C. C. A. 566; (C. C.) 146 Fed. 137; (C. C.) 171 Fed. 117.

Bernard Cowen, for plaintiff in error.

O. Ellery Edwards, Jr., for defendants in error.

Before COXE, WARD, and NOYES, Circuit Judges.

COXE, Circuit Judge (after stating the facts as above). It is not necessary to add to the extended discussion which every branch of For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

this controversy has received. The validity of the patent and its infringement are no longer debatable questions between the complainants and Bernard. The only question is whether the consequences of infringement can be avoided by the formation of the corporation “William Bernard, Incorporated."

It is true that the corporation is not expressly named as defendant, but it could not have had more direct and explicit notice of the injunction if it had been so named. It was cited by an order of the Circuit Court to appear and show cause why it should not be punished for contempt in violating the injunction and was given full opportunity to purge itself. In organizing the corporation Bernard was the moving spirit. That it was organized for the purpose of escaping the consequences of the infringement of the patent which Bernard had sold. and assigned to the complainants, is too plain for controversy. That Bernard, as its treasurer, fully represented the corporation cannot be doubted and if the formality of a separate action had been deemed necessary, service on Bernard, the individual, would have been binding on Bernard, the corporation. A person who, with full knowledge of its provisions, has violated an injunction may be punished for contempt, although not a party to the suit. In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, 41 L. Ed. 1110; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900,' 39 L. Ed. 1092; Bessette v. Conkey, 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997.

The order is affirmed, with costs.

SHAWNEE MILLING CO. v. TEMPLE, U. S. Dist. Atty., et al.

UPDIKE MILLING CO. v. SAME.

(Circuit Court, S. D. Iowa, C. D. May 10, 1910.)

Nos. 2,490, 2,492.

1. INJUNCTION ($ 85*)-SCOPE OF RELIEF-ENFORCEMENT OF CRIMINAL OR PENAL STATUTES.

A bill for injunction to restrain the enforcement of a criminal or penal statute is allowable when the, statute is unconstitutional or invalid, where, in an attempt to enforce it, property rights are invaded, or where oft-repeated attempts to enforce it would create a multiplicity of suits, in themselves oppressive.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*

Restraining criminal proceedings, see note to Arbuckle v. Blackburn, 51 C. C. A. 133.]

2. INJUNCTION (§ 85*)-CIVIL PROCEEDINGS.

Rev. St. § 723 (U. S. Comp. St. 1901, p. 583), declaring that suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at -law, prohibits the filing of a bill in equity to enjoin the enforcement of a valid statute by civil proceedings.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. 85.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

8. EVIDENCE (8 7*)-JUDICIAL NOTICE-QUALITIES AND PROPERTIES OF MATTER. Judicial notice will be taken of the fact that good, sound wheat of the best variety, properly and timely harvested, put through the sweat in the stack, well ground and bolted, makes nutritious, wholesome, and white flour.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 7.*]

4. FOOD (22*)—BLEACHED FLOUR-INJURY TO HEALTH-QUESTION FOR JURY. Whether flour, bleached by the use of nitrogen peroxide under the Andrews' patent, or pursuant to the Alsop process, is flour so treated that inferiority is concealed, or contains added poisonous ingredients which may render it injurious to health, in violation of National Pure Food Law June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187), is a question of fact for determination by a jury, or by the court if a jury is waived.

[Ed. Note. For other cases, see Food, Dec. Dig. § 22.*]

5. COMMERCE (§ 33*)-REGULATION-NATIONAL PURE FOOD LAW-VALIDITY. The national pure food law (Act Cong. June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]) prohibiting transportation in interstate commerce of any article of food so treated, whereby its inferiority is concealed, or containing added poisonous ingredients which may render it injurious to health, was not an exercise of police power within the exclusive jurisdiction of states, but was within the jurisdic tion of Congress, as a proper regulation of interstate commerce.

[Ed. Note. For other cases, see Commerce, Dec. Dig. § 33.*]

In Equity. Bills by the Shawnee Milling Company and the Updike Milling Company against Marcellus L. Temple, United States District Attorney, and Frank B. Clark, United States Marshal, and others, to restrain them from seizing complainants' flour in interstate shipments under the national pure food law (Act Cong. June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]). Bills dismissed. Ed P. Smith, A. E. Helm, and Bruce S. Elliott, for complainants. Pierce Butler, Asst. U. S. Atty. Gen., and Marcellus L. Temple, U. S. Atty., for respondents.

SMITH MCPHERSON, District Judge. Each of these two cases is by a bill in equity, practically the same. One of complainants, Updike Milling Company, is a corporation under the laws of Nebraska, there engaged in the business of manufacturing wheat into flour both for domestic use and for shipments into Iowa and other states for sale and consumption. The other complainant, Shawnee Milling Company, is a corporation under the laws of Kansas, there engaged in a like business, sales, and shipments.

The defendants are the United States attorney and marshal for this district, and the relief sought is to enjoin the respondent officers from having issued, or serving process for seizing complainants' flour in interstate shipments under the national pure food statute of June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]).

The allegations are that complainants' flour is whitened and aged by a process, and that the same is not harmful, but is more nutritious, wholesome, and attractive for making bread. It is not alleged in the bill of complaint in terms that the flour is bleached by the Alsop proFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

cess as covered by certain English and American patents, as set forth by the Circuit Court of Appeals for this circuit in the case of Naylor v. Alsop Process Company, 168 Fed. 911, 94 C. C. A. 315; but all the arguments, both by briefs and orally, were on that state of facts. Counsel for the United States have appeared for the defendants, thereby in effect making the cases controversies between the United States government, on the one side, and western flour mill owners, on the other, who bleach their flour by the agency of nitrogen peroxide gas under the Alsop patent process.

A literal reading of the bills of complaint will show that they are fairly subject to criticism; that the allegations as to the aging, whitening, and improving the flour are largely by the use of adjectives and adverbs, instead of reciting just what is done, how the flour is aged, how whitened, how made more nutritious, why not harmful, and why better by the use of some agency not named nor described. But this criticism need not be elaborated. The cases are now for determination on demurrers to the bills of complaint, and sufficient allegations appear to cover the rulings now to be made.

A bill in equity in which the writ of injunction can issue to enjoin the enforcement of a criminal or penal statute is allowable only when: (1) Such statute is unconstitutional or otherwise invalid; (2) in the attempt to enforce such invalid statute, rights of property are invaded and trampled on; or (3) the often repeated attempts to enforce such invalid statute creates a multiplicity of actions which are of themselves oppressive.

The important and recent case of Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, illustrates this, in which case it was held that a bill in equity would confer jurisdiction because of the oppressive penalties if an effort should be made to protect the rights of property. In City of Hutchinson v. Beckham, 118 Fed. 399, 55 C. C. A. 333, the Circuit Court of Appeals for this circuit held that an injunction should issue against the prosecution of cases under an invalid ordinance requiring an illegal license, which would be followed by many criminal prosecutions. In Dobbins v. Los Angeles, 195 U. S. 223, 241, 25 Sup. Ct. 18, 22 (49 L. Ed. 169), the holding was clearly and tersely stated:

"It is well settled that, where property rights will be destroyed, lawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity."

But if property rights are not invaded, then a court of equity ordinarily will not interfere, because the defense as to the invalidity of the statute can be urged in the criminal or penal action or special proceeding. Thus, in the case of In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31.L. Ed. 402, it was held that proceedings for the ouster of a city officer could not be enjoined for the alleged invalidity of the law under which the proceedings were being conducted. And of like holdings are the cases of Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399, and Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535. And if the proceedings for seizure are to be regarded as civil, then section 723, Rev. St. (U. S. Comp. St. 1901, p.