Evening star. [volume] (Washington, D.C.) 1854-1972, 1903-05-06
BY COURT OF APPEALS
OPINIONS HANDED DOWN IN
LOCAL CAUSES.
Judgment Of Lower Court Reversed in
Case Of Lappin Against Dis
trict-Other Decisions.

The Court of Appeals late yesterday
afternoon handed down all opinion. written
by Mr.. Justice Shepard. reversing the judg-
ment of the Police Court in the case of Rob-
inson Lappin, plaintiff in error, against the
District of Columbia. The case is remand
ed with directions to enter a judgment dis
concurred in the opinion, but Mr.. Chief JUS
tice Alvey dissented.
The Court of Appeals holds, in effect, that
the personal tax law of July l, 1902, in so
far as it requires license fee Of brokers' is
unconstitutional, the appellate court taking
the view that the fee would be an unreason-
able burden upon the right of a citizen to
pursue lawful occupation.
Mr.. Lappin was convicted in the Police
Court of being an unlicensed broker, in that
he had not paid the license required by the
personal tax law. Mr. Lappin appealed
He contended that the law was unconsti-
tutional in that 1t Disseminated against
brokers who conducted business in the Dis
trict Of Columbia and were not members of
a regularly organized exchange outside of
the District of Columbia, and charged them
$3.50 license, while brokers conducting BUSH
ness In the District of Columbia who were
members Of such an outside exchange were
charged but 500.
In reversing the Police Court the Court
Of Appeals says: THE statute, as we are
constrained to regard it, by imposing an
unreasonable burden upon the right of
citizen to pursue a lawful occupation open
to his competitors on less onerous terms,
which right of occupation is, as we have
seen, of the nature Of property, operates
substantially the taking of property
without due process of law, and is. there
fore, within the prohibition of the fifth
amendment of the Constitution
The Utermehle Estate.
In an opinion written by Mr. Justice
Morris. the Court of Appeals late yester-
day affirmed the decision of the District
Supreme Court in the case Of Charles H.
Utermehle, appellant, against Mamie E.
Norment and others-the Utermehle will
case.
Without considering the merits of the
cause, the jury in the trial court was di-
rected by the presiding justice to render a
verdict in favor Of Mrs. Norment and the
other defendants. solely on the question Of
estoppel. In affirming the decision the
Court Of Appeals holds that -notwithstand-
ing offer tender alleged to have been
made by Charles II. Utermehle, the cavea-
tor. to the caveatees of the property taken
by him under the will. he must be held
to be estopped to deny the validity of the
will after having remained silent and ap-
parently recognized the validity Of the
same for many years.
Patent Appeal Case.
The Court of Appeals, in an opinion writ
ten by Mr. Chief Justice Alvey, has affirm
ed the order of the District Supreme Court
in the case Of Charles P. Stinmetz, ap-
pellant, against the commissioner of pat
ents. The lower court dismissed petition
of Mr.. Stinmetz for writ of mandamus
against the commissioner of patents, re-
quiring him to direct the primary examiner
in the patent office to forward to the board
of examiners-in-chiefa an appeal prayed for
in the matter Of an application for pat
ent relating to Improvement to motor me-
ters
1t was pointed out that the applcat ton of
the defendant for patent contained claims
to both method and apparatus, and the ex-
aminer requested him to separate them and
file two claims. He asked for a reconsid-
Grafton Of the matter by the chief examiner
and. meeting with a refusal, petitioned the
commissioner for appeal. The latter
denied the petition, and when the case
came up in the District Supreme Court he
held that the requirement that an applica-
ton containing claims to both method and
apparatus be divided as a condition to the
allowance Of the application with either set
of claims is matter of form of procedure
and that the commissioners Jurisdiction is
exclusive. Hence there is no right of APP
peal under the statute to the board of OK
aminers-in-c chief. This view is sustained by
the Court of Appeals.