Opinion of the Court. "2. Whether the laying of the said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface, by cutting across the surface of the larger blocks by running the marker, without any other cutting with a trowel or other instrument than the marker described, across the blocks, on a line previously marked, as a guide, in all respects in the manner as herein before stated, thereby controlling the line of cracking, and obtaining in a greater or less degree the advantages pertaining and belonging to the pavements laid in all respects in accordance with the specifications of said Schillinger patent, constitutes an infringement of said patent? "3. Whether the defendant Molitor, by constructing the said pavement in all respects in the manner herein before stated, is guilty of violating the injunction granted and made perpetual by the decree in this case? "Upon which said several questions and upon each of them the judges were divided in opinion." These are the questions which we are now called upon to answer. We are met, however, at the outset, by a preliminary question, to wit, whether the points thus presented by the certificate of the judges below come within the meaning of the statute which authorizes this court to decide questions of law on which the judges of the Circurt Court are opposed in opinion. It is not a difference of opinion on the general case which may be thus certified. Such a difference would properly result in a decree for the defendant, or party holding the negative, subject to an appeal to this court in the ordinary course, It is only a difference on a special point of law which can be distinctly stated, that may be certified to this court under the statute. § 652 Rev. Stat. declares that when a judgment or decree is entered in a civil suit, in a circuit court held by two judges, in the trial or hearing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall be stated and certified, &c. The language is copied from the act of April 29, 1802, § 6, 2 Stat. 159, and shows that a certificate can only be resorted to when Opinion of the Court. "a question" has occurred on which the judges have differed, and where "the point" of disagreement may be distinctly stated. This court has frequently held that the "question" referred to must be a question of law, and must be capable of being presented in a single point. Chief Justice Marshall, in Wayman v. Southard, 10 Wheat. 1, 20, said: "The law which empowers this court to take cognizance of questions adjourned from a circuit, gives jurisdiction over the single point on which the judges were divided, not over the whole cause." In Dennistoun v. Stewart, 18 How. 565, the matter is examined with precision. In that case the judges differed in opinion as to the charge which should be given to the jury upon the evidence adduced. The evidence was set forth in the certificate, and the points upon which the judges differed as to the charge to be given were stated. The court, speaking by Mr. Justice Daniel (p. 568), recapitulated the interpretations which had been given to the act in reference to the requisites of its jurisdiction on such certificates. 1. They must be questions of law and not questions of fact-not such as involve or imply conclusions or judgment by the judges upon the weight or effect of the testimony or facts adduced in the cause (referring to Wilson v. Barnum, 8 How. 258). And the question on which the judges differed must be stated; not, whether a demurrer made on several grounds should be sustained (referring to United States v. Briggs, 5 How. 208). 2. The points stated must be single, and must not bring up the whole case for decision (referring to United States v. Bailey, 9 Pet. 257; Adams v. Jones, 12 Pet. 207; White v. Turk, 12 Pet. 238; Nesmith v. Sheldon, 6 How. 41; Webster v. Cooper, 10 How. 54). And, inasmuch as the certificate in that case (Dennistoun v. Stewart) did not present a single or specific question of law arising in the progress of the cause, but referred to this court the entire law of the case as it might arise upon all the facts supposed by the court, the case was remanded to the Circuit Court to be proceeded in according to law, without any answer to the questions propounded. The cases and points adjudged on the subject are very fully rehearsed by Mr. Justice Swayne in Daniels v. Railroad Co., Opinion of the Court. 3 Wall. 250. That was an action for an injury caused by a collision of railroad cars, and, after reciting the evidence, the certificate stated that this was all the evidence, and thereupon it occurred as a question whether, in point of law, upon the facts as stated and proved, the action could be maintained, and whether or not the jury should be so instructed; and, on this question, the judges were opposed in opinion. The court refused to consider the case, and dismissed the certificate. The case of Wilson v. Barnum, 8 How. 258, is especially worthy of note in this connection. The question certified in that case was whether, upon the evidence given, the defendant infringed the complainant's patent. Chief Justice Taney, delivering the opinion of the court, said: "The question thus certified is one of fact, and has been discussed as such in the arguments offered on both sides. It is a question as to the substantial identity of the two machines. The juris diction of this court to hear and determine a question certified from the Circuit Court is derived altogether from the act of 1802 [cited above], and that act evidently gives the jurisdiction only in cases where the judges of the Circuit Court differ in opinion on a point of law. In the multitude of questions which have been certified, this court has never taken jurisdiction of a question of fact. And in a question of law it requires the precise point to be stated, otherwise the case is remanded without an answer." Pages 261-2. And the case was remanded for want of jurisdiction. It seems to us that the certificate in the present case is obnoxious to the objections presented in the cases cited. The new controversy raised by the defendant's construction of the pavement in Redwood City is substantially a new suit on the patent; and we are asked to decide it. We are asked to say whether a pavement constructed in such and such a manner is an infringement of the patent as the Circuit Court has construed the patent. And this is a mixed question of fact and law. By the final decree in the case, made in 1881, the court decided that the pavements which the defendant had been theretofore making did infringe the patent. How those pavements were constructed we are not informed; and therefore Syllabus we do not know what was the precise construction given by the court to the patent. Whether the new pavement, constructed in Redwood City, is an infringement or not, is just as much a mixed question of law and fact (as the case is presented to us) as was the question whether the pavements formerly constructed by the defendant were an infringement. It is a question which the Circuit Court must decide for itself in the ordinary way. If the judges disagree there can be no judgment of contempt; and the defendant must be discharged. The complainant may then either seek a review of that decision in this court, or bring a new suit against the defendant for the alleged infringement. The latter method is by far the most appropriate one where it is really a doubtful question whether the new process adopted is an infringement or not. Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct. The case must be dismissed, with directions to the Circuit Court to proceed therein according to law. WINONA & ST. PETER RAILROAD COMPANY v. BARNEY & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. Argued December 4, 5, 1884.-Decided March 2, 1885. If acts granting public lands to a State to aid in constructing railroads contain words of description to which it would be difficult to give full effect if they were used in an instrument of private conveyance, the court in construing the acts will look to the condition of the country when they were passed, as well as to the purpose declared on their face, and will read all parts of them together. By the act of March 3, 1857, Congress granted to the then Territory of Minnesota in aid of the construction of certain railroads certain alternate sections of lands along the lines of the roads, and further provided that “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 Statement of Facts. 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 so much land as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of preemption have attached as aforesaid," &c. Held, That the indemnity clause in this act covers losses from the grant by reason of sales and the attachment of preemption rights previous to the date of the act, as well as by reason of sales and the attachment of preëmption rights between that date and the final determination of the route of the road. Railroad Co. v. Baldwin, 103 U. S. 126, distinguished. Leavenworth Railroad Co. v. United States, 92 U. S. 733, explained. The act of March 3, 1865, 13 Stat. 526, enlarged the grant made to Minnesota by the act of March 3, 1857, from six sections per mile to ten sections; and the limits within which the indemnity lands were to be selected to twenty sections, and further provided, that "any lands which may have been granted to the Territory or State of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of said grant or grants, shall be deducted from the full quantity of the lands hereby granted." Prior to the act of 1865, a grant had been made to a railroad of lands located within the limits covered by said extension grant: Heid. (1) That the grant by the act of 1857 was a grant of land in place, and not of quantity; (2) that the enlargement of the grant by the act of 1865 did not change its nature as to the six sections originally granted; (3) that as to the remaining four sections the grant was one of quantity, but to be selected along and opposite the completed road; (4) that where the earlier grant to aid in the construction of the Minnesota and Cedar Valley Railroad interferes with the extension grant to the plaintiff in error, the earlier grant takes the land, and the extension must be abandoned. On the 3d of March, 1857, Congress passed an act, 11 Stat. 195, making a grant of lands to the Territory of Minnesota to aid in the construction of certain railroads, with their branches, and, among others, a railroad from Winona, a town on the Mississippi River, via St. Peter, to a point on the Big Sioux River, south of the 45th parallel of north latitude, which is in the present Territory of Dakota. The language of the act is, "That there be, and is hereby, granted to the Territory every alternate section of land designated by odd numbers, for six sections in 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 |