Ruth v. Eagle-Picher Company, 5072.

• Decision Date: 18 July 1955
• Docket Number: No. 5072.,5072.
• Citation: 225 F.2d 572
• Parties: Joseph P. RUTH, sometimes also known as J. P. Ruth, Appellant, v. The EAGLE-PICHER COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

225 F.2d 572 (1955)

Joseph P. RUTH, sometimes also known as J. P. Ruth, Appellant, v. The EAGLE-PICHER COMPANY, a corporation, Appellee.

No. 5072.

United States Court of Appeals Tenth Circuit.

July 18, 1955.

Frank C. Lowe, Denver, Colo. (Albert L. Vogl and William F. Reynard, Denver, Colo., on the brief), for appellant.

Edward B. Evans, Cincinnati, Ohio (Edmund P. Wood, Cincinnati, Ohio, and W. A. McGrew, Denver, Colo., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PHILLIPS, Chief Judge.

This is an action for patent infringement brought by Ruth against the Eagle-Picher Company in the District of Colorado. Eagle-Picher imposed a motion to dismiss on the ground that while it is authorized to do business in the State of Colorado, it is a corporation organized under the laws of Ohio and had committed no acts of patent infringement within the District of Colorado. The trial court sustained the motion. Ruth has appealed.

28 U.S.C.A. § 109, prior to the 1948 revision of the Judicial Code, Act of June 25, 1948, 62 Stat. 869, in part read as follows:

"In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. * * *"

In the 1948 revision, § 1400(b) of Title 28 U.S.C.A. reads as follows:

"(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business."

28 U.S.C.A. §§ 112 and 113, before the 1948 revision of the Judicial Code, in part read as follows:

"§ 112. * * * except as provided in sections 113 to 118 of this title, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; * * *"

"§ 113. When a State contains more than one district, every suit not of a local nature, in the district court thereof, against a single defendant, inhabitant of such State, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the State, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. * * *"

In the 1948 revision § 1391(b, c) of Title 28 U.S.C.A. reads as follows:

"(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.

"(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."

In the 1948 revision, § 1392(a) of Title 28 U.S.C.A. reads as follows:

"(a) Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts."

In Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 781, 86 L.Ed. 1026, the question presented was whether 28 U.S.C.A. § 109 was the sole provision governing venue of patent infringement cases, or whether that section was supplemented by 28 U.S.C.A. § 113. The court held that 28 U.S.C.A. § 109 was the exclusive provision controlling venue in patent infringement cases.¹

The question here presented is whether § 1400 is the sole provision governing patent infringement cases, or whether it is supplemented by § 1391(c).

It has been often stated that where there are two statutes upon the same subject, one being special and the other general, the presumption is, in absence of an express repeal, or an absolute incompatibility, that the special is intended to remain in force as an exception to the general,² without regard to the time of the enactment of such statutes³ or the priority of enactment.⁴ However, the rule is peculiarly applicable where the statutes are enacted at the same time or about the same time.⁵

It is a well settled rule of construction that where the entire legislation affecting a particular subject matter has undergone revision and consolidation by codification the revised sections will be presumed to bear the same meaning as the original sections.⁶ This is true, even though in the course of revision or consolidation the language of the original sections has been changed. Ordinarily, the new language will be attributed to a desire to condense and simplify the text and to improve phraseology.⁷ A legislative intent to change meaning will not be inferred unless such intent is clearly and indubitably manifested.⁸

The report of the Committee on the Judiciary of the Senate on H. R. 3214 "Revising, codifying, and enacting into law Title 28 of the United States Code, entitled `Judicial Code and Judiciary'",⁹ in part reads as follows:

"Many noncontroversial improvements have been effected which, while individually small in themselves, add up to a very substantial improvement in and modernization of the law relating to the Federal judiciary. At the same time great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval.

* * * * * *

"* * * Appended to the report are the revisers\' notes to each section, together with accompanying tables. These explain in great detail the source of the law and the changes made in the course of the codification and revision."

The report of the Committee on the Judiciary of the House on "Revision of Title 28 U.S.C., 80th Congress, First Session, Report No. 308", states:

"The reviser\'s notes are keyed to sections of the revision and explain in detail every change made in text. References to court decisions are supplied wherever necessary or appropriate."¹⁰

Mr. William W. Barron, Chief Reviser of Title 28 U.S. Code, Judiciary and Judicial Procedure, in his article on "The Judicial Code 1948 Revision", said:

"There was no purpose on the part of the Revision staff to effect any change in existing law. Despite this, the process of comprehensively examining and rewriting the Code disclosed some grave disparities, inconsistencies and ambiguities not correctable by mere codification. This was due in part to forty years of piecemeal amendment to the 1911 Judicial Code. Some such problems had manifested themselves in difficult and not wholly satisfactory judicial interpretations. The Reviser and the Advisory Committee, upon discovering situations which would not yield to codification, felt in duty bound to apprise Congress of their findings and recommendations. Consequently, a few such changes, substantive in nature, were recommended to Congress. These were carefully outlined in the Reviser\'s Notes, and fully considered by the Judiciary Committees of both houses. * * *"¹¹

"Because of the necessity of consolidating, simplifying and clarifying numerous component statutory enactments no changes of law or policy will be presumed from changes of language in revision unless an intent to make such changes is clearly expressed.

"Mere changes of phraseology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the original meaning of the statute revised.

"Congress recognized this rule by including in its reports the complete Reviser\'s Notes to each section in which are noted all instances where change is intended and the reasons therefor."¹²

The Reviser's Notes with respect to § 1400(b) read as follows:

"Subsection (b) is based on said section 109 of title 28 U.S.C., 1940 ed., with the following changes:

"Words `civil action\' were substituted for `suit,\' and words `in law or in equity,\' after `shall have jurisdiction\' were deleted, in view of Rule 2 of the Federal Rules of Civil Procedure.

"Words in subsection (b) `where the defendant resides\' were substituted for `of which the defendant is an inhabitant.\' A corresponding change was made in subsection (a). Words `inhabitant\' and `resident,\' as respects venue, are synonymous. (See reviser\'s note under section 1391 of this title.)

"Words `whether a person, partnership, or corporation\' before `has committed\' were omitted as surplusage."

The Reviser's Notes clearly indicate a mere language change and negative any intent to effect a substantive change.

Pertinent provisions of the Reviser's Notes relative to § 1391 read as follows:

"Section consolidates said section 111 of title 28, U.S.C., 1940 ed., with part of said section 112 of such title.

* * * * * *

"Word `action\' was substituted for `suit\' in view of rule 2 of the Federal Rules of Civil Procedure.

"Word `reside\' was substituted for `whereof he is an inhabitant\' for clarity inasmuch as `inhabitant\' and `resident\' are synonymous. (See Ex parte Shaw, 1892, 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768; Standard Stoker Co., Inc., v. Lower, D.C.1931, 46 F.2d 678; Edgewater Realty Co. v. Tennessee Coal, Iron & Railroad Co., D.C.1943, 49 F.Supp. 807.)"

They indicate no intent to make a substantive change.

The phrase in subsection (c) of § 1391, "in which it is incorporated or licensed to do business," merely writes into the venue section the effect of the decision of the Supreme Court in Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. The phrase in subsection (c), "or is doing business," extends the philosophy of that case to the act of doing business.

There is nothing in the Reviser's Notes to § 1391 indicating an intent to modify § 1400.

At the hearings before Subc...