Opinion of the Court.

sak v. Reiher, 115 U. S. 96, 100; Ives v. Sargent, 119 U. S. 652, 662; Hoskin v. Fisher, 125 U. S. 217.

Nor was there any inadvertence, accident or mistake such as would authorize a reissue with new claims. Clements v. Odorless Apparatus Co., 109 U. S. 641, 649; Mahn v. Harwood, 112 U. S. 354, 359; Coon v. Wilson, 113 U. S. 268, 277; Newton v. Furst & Bradley Co., 119 U. S. 373, 385; Worden v. Searls, 121 U. S. 14, 24; Matthews v. Ironclad Mfg. Co., 124 U. S. 347.

Claim 1 of the original patent cannot be regarded as a proper foundation for claims 2 and 5 of the reissue, because that claim was repeated in the application for the reissue, and was abandoned by Tirrell after he had repeatedly attempted, and unsuccessfully, to convince the Patent Office that the invention set forth in that claim was not anticipated by the patents. referred to by the office. Nor can it be held that claims 2 and 5 of the reissue are for inventions which the specification of the original set forth as the inventions of the patentee.

Unless the first claim of the original is to be limited to a circuit-breaker located at the burner, the fourth claim of the reissue claims a combination of a smaller number of elements than claim 2 of the original, and is therefore void.

A suit was brought by the present plaintiff, in the Circuit Court of the United States for the Southern District of New York, against Luther G. Tillotson and another, composing the firm of Tillotson & Co., for an infringement of reissue No. 9743, and was heard before Judge Wheeler, whose opinion is reported in 21 Fed. Rep. 568. The infringing apparatus was made under patent No. 230,590. The question of the validity of the reissue was considered by the court, in reference to claims 2 and 5, and it was held that those claims were invalid, on the ground that they were not made anywhere in the original patent as a part of the invention; that that patent had stood nearly nine years before those claims were made; and that the right under which the defendant operated had accrued before they were made. The same result was reached by Judge Wheeler in a suit in the same court, as to claim 5 of the reissue, against Smith and Rhodes, 23 Fed. Rep. 195. In the

Opinion of the Court.

present case, Judge Colt, in his opinion in 29 Fed. Rep. 455, adopted the views of Judge Wheeler as to claims 2 and 5 of the reissue, and held those claims to be void, under the authority of Miller v. Brass Co., 104 U. S. 350, and subsequent cases. In regard to claim 4 of the reissue, which is in substance the same as claim 2 of the original, Judge Colt held that there was no infringement, because there was in the defendant's apparatus no separate lever to open and close the valve and carrying the circuit-breaker, such as is described in the Tirrell patent.

The defendant's apparatus is the Crockett burner, described in patent No. 281,345, of July 17, 1883, and resembles the apparatus of patent No. 230,590 in dispensing with the ratchetwheel and switching mechanism, in opening and closing the gas-cock with one electric impulse, and in employing two electro-magnets and two independent electric circuits, one for turning on and igniting the gas, and the other for turning off the gas. If the claims of the reissue are limited, as they must be, to the specific mechanism described in the specification, it is very clear that the defendant's apparatus does not infringe. It is incapable of being used to light a series of burners. It opens the gas-valve by a single impulse, and closes it by a single impulse. No spark is produced until the gas-valve is fully opened. It has no switching mechanism, or any equivalent therefor, no ratchet-wheel and pawl, and no lever carrying the circuit-breaker. It has two magnets, two armatures, and two electric circuits, the magnets having no connection with each other, one of them being used solely for turning on and lighting the gas, and the other for turning it off, and no spark being produced in the latter operation. Nor has it any lever distinct from the armature; nor is the armature which operates to close the gas-valve ever in combination with the circuit-breaker. Decree affirmed.

ELECTRIC GAS-LIGHTING COMPANY v. TILLOTSON. Appeal from the Circuit Court of the United States for the Southern District of New York. No. 235. Argued March 20, 1891. Decided April 6,

Opinion of the Court.

1891. MR. JUSTICE BLATCHFORD delivered the opinion of the court. This suit is founded upon the same reissue, No. 9743, considered in No. 232, Electric Gas-Lighting Co. v. Boston Electric Co., just decided. The case was heard by Judge Wheeler, who dismissed the bill, holding that claims 2 and 5 of the reissue were invalid. 21 Fed. Rep. 568. It having been stipulated that, if the decree in No. 232 is affirmed, the decree in No. 235 shall be affirmed without costs to the appellee, and the decree in No. 232 having been affirmed, the decree in No. 235 is

Affirmed, without costs to the appellee.

Mr. Edward P. Payson and Mr. Edwin H. Brown for appellant.

Mr. John E. Abbott and Mr. John L. S. Roberts for appellee.

In re MANNING, Petitioner.

ERROR TO THE SUPREME COURT OF THE STATE OF WISCONSIN.

No. 1607. Submitted March 17, 1891.- Decided April 6, 1891.

A person is not denied the equal protection of the laws, nor deprived of liberty without due process of law, in violation of the Fourteenth Amendment of the Constitution, by being tried and sentenced to imprisonment by a judge who, although appointed by the governor without authority, is a judge de facto of a court de jure, by the law of the State as declared by its highest court.

THE case is stated in the opinion.

Mr. Rublee A. Cole and Mr. W. W. O'Keefe for petitioner.

No one opposing.

MR. JUSTICE GRAY delivered the opinion of the court.

This was a writ of error to review a judgment of the Supreme Court of the State of Wisconsin, denying to Patrick Manning a writ of habeas corpus to discharge him from the

Opinion of the Court.

custody of the warden of the state prison under a sentence of the municipal court for Ashland County. 76 Wisconsin, 365. The case was this:

By the statute of Wisconsin of 1889, c. 94, § 1, "A municipal court for the city and county of Ashland is hereby established, under the name of the municipal court for Ashland County," which "shall be a court of record, have a clerk and a seal," and "may exercise powers and jurisdiction equal to, and concurre it with, the Circuit Court of Ashland County, in all cases of crimes and misdemeanors arising in said county, except murder and rape," besides other jurisdiction, criminal and civil.

By 8 4, "The qualified voters of the county of Ashland shall, on the first Tuesday in April, 1889, and on the first Tuesday of April every fourth year thereafter, elect a suitable person to the office of judge of said municipal court, to be called municipal judge, who shall hold his office for the term of four years from the first Monday in January next succeeding his election, and until his successor shall be elected and qualified." "Whenever a vacancy shall happen in the office of said judge, the governor shall fill such vacancy by appointment. The person so appointed shall hold the office until his successor shall be elected and qualified.”

By § 11, "This act shall take effect and be in force from and after its passage and publication." It was approved by the governor March 14, and published March 15, 1889.

The first election of judge of the municipal court for Ashland County was held on April 2, 1889, when L. A. Calkins was elected for the term of four years beginning the first Monday of January, 1890; and on April 4, 1889, the governor appointed him judge of that court "for the term ending the first Monday of January, 1890."

In that court, held by said Calkins as judge, the petitioner was in August, 1889, charged with manslaughter, tried and convicted in October, and sentenced on November 9, 1889, to imprisonment at hard labor in the state prison for three years, and was held by the warden under that sentence.

It was contended in his behalf that, at the time of his trial

Opinion of the Court.

and sentence, there was no such court in existence as the municipal court for Ashland County; that the governor had no authority to appoint a judge of that court before the first Monday of January, 1890; that before that date there was no judge, de jure or de facto, of that court; that the court which tried and sentenced him had no jurisdiction; and that he had been denied the equal protection of the laws, and deprived of his liberty without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States.

The Supreme Court of Wisconsin, as appears by its opinion delivered in a similar case decided at the same time, and referred to in its opinion in this case, denied the writ of habeas corpus because, assuming that the governor had no authority to make, when he did, the appointment of Calkins as judge of the municipal court for Ashland County, yet that court was established and in legal existence from and after the publication of the statute of 1889, c. 94, on March 15, 1889, and by the law of Wisconsin, as declared in a long series of decisions, it was a settled rule that "if the office has been lawfully established, and a person exercises the functions thereof by color of right, but whose election or appointment thereto is illegal, his official acts therein cannot be successfully attacked in collateral proceedings, but in all such proceedings will be valid and binding until the officer is ousted by the judgment of a court in a direct proceeding to try his title to the office; and that Calkins, at the time of the proceedings against the petitioner, was, "at least, judge de facto of such court." In re Burke, 76 Wisconsin, 357, 363.

The cases cited fully support that position. See especially In re Boyle, 9 Wisconsin, 264; Dean v. Gleason, 16 Wisconsin, 1; Chicago & Northwestern Railway v. Langdale County, 56 Wisconsin, 614; Yorty v. Paine, 62 Wisconsin, 154.

It must, therefore, be taken as conclusively settled that by the law of Wisconsin, at the time of the trial and sentence of the petitioner, the court in which he was tried and sentenced was a court de jure, and the judge who tried and sentenced him was at least judge de facto, and the sentence itself was